AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 9, 1996.
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_______________
ASARCO INCORPORATED
(Exact name of registrant as specified in its charter)
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<S> <C>
NEW JERSEY 13-4924440
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
180 Maiden Lane
New York, New York 10038
(212) 510-2000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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Augustus B. Kinsolving, Esq.
ASARCO Incorporated
180 Maiden Lane, New York, New York 10038
(212) 510-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_______________
COPY TO:
Kevin Keogh, Esq.
Timothy B. Goodell, Esq.
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White & Case
1155 Avenue of the Americas
New York, New York 10036
_______________
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. ( )
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. (x)
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ( )__________.
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ( )__________.
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box ( ).
_______________
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<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Aggregate
Proposed maximum Proposed maximum offering Amount of
Title of each class of Amount to offering price price registration
securities to be registered be registered(1) per unit(1)(2) (1)(2) fee
Debt Securities(3)(4)
Convertible Debt Securities(3)(4)(5) $150,000,000(2)(6) $150,000,000 $51,724.14
Common Stock(3)(4)(7)
Preferred Stock(3)(4)(8)
Depositary Shares(3)(9)
Convertible Preferred Stock(3)(4)(5)
Warrants(4)
Notes are on next page
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Pursuant to Rule 429 promulgated under the Securities Act of 1933, as
amended, the prospectus which is a part of this Registration Statement
includes all the information currently required in a prospectus relating to
the securities covered by Registration Statement No. 33-55993 of the Company
and such combined prospectus constitutes Post-Effective Amendment No. 1 to,
and will be used in connection with, Registration Statement No. 33-55993. The
amount of Securities carried forward from Registration Statement No. 33-55993
is $150,000,000, in respect of which the registrant has previously paid a
filing fee of $51,724.14.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
<PAGE>
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
_______________
(1) In United States dollars or the equivalent thereof in foreign currency or
currency units.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
(3) No separate consideration will be received for the Depositary Shares, or
for the Debt Securities, Preferred Stock, Convertible Preferred Stock or
Common Stock which may be issuable upon conversion of or in exchange for
the Convertible Debt Securities or Preferred Stock.
(4) In no event will the aggregate initial price of the Debt Securities,
Convertible Debt Securities, Preferred Stock, Common Stock, Convertible
Preferred Stock and Warrants (collectively, "Securities") offered exceed
$150,000,000.
(5) Such indeterminate amounts of Debt Securities and Convertible Debt
Securities, and such indeterminate number of shares of Preferred Stock,
Convertible Preferred Stock and Common Stock, as may be issued upon
conversion or exchange of any Convertible Debt Securities, Preferred
Stock or Convertible Preferred Stock that provide for conversion or
exchange into other securities.
(6) The Common Stock to be issued includes Preferred Stock Purchase Rights
associated with the Common Stock under a Shareholder Rights Plan.
(7) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the event
the Registrant elects to offer to the public fractional interests in
shares of the Preferred Stock registered hereunder, Depositary Receipts
will be distributed to those persons acquiring such fractional interest
and the shares of Preferred Stock will be issued to the Depositary under
the Deposit Agreement.
(8) Calculated pursuant to Rule 457(a), based upon bona fide estimate as of
the date hereof of maximum offering price.
(9) Includes Common Stock that is to be offered and sold outside the United
States either as part of the distribution or within 40 days after the
date of the effective date of this registration statement and the date
the Common Stock is first offered to the public.
Subject to completion, dated , 1996.
PROSPECTUS
ASARCO Incorporated
$300,000,000
Debt Securities
Convertible Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Convertible Preferred Stock
Warrants
<PAGE>
_______________
ASARCO Incorporated ("Asarco" or the "Company") may from time to time offer,
together or separately, (i) its debt securities consisting of debentures,
notes or other unsecured evidences of indebtedness (the "Debt Securities");
(ii) its convertible debt securities (the "Convertible Debt Securities"),
consisting of debentures, notes or other evidences of indebtedness
representing unsecured obligations of the Company convertible into common
stock, without par value (the "Common Stock") or into Preferred Stock, without
par value (the "Preferred Stock") of the Company; (iii) shares of its
Preferred Stock, which may be represented by Depository Receipts (the
"Depositary Shares") which will represent a fraction of a share of Preferred
Stock; (iv) shares of its Preferred Stock convertible into Common Stock or
another series of Preferred Stock (the "Convertible Preferred Stock"), which
may be represented by Depositary Shares; and (v) warrants to purchase
securities of the Company as shall be designated by the Company at the time of
the offering (the "Warrants"), in each case, in amounts, at prices and on
terms to be determined at the time of the offering. The Company may also
offer and sell from time to time shares of the Common Stock. The Common
Stock, the Debt Securities, the Convertible Debt Securities, the Preferred
Stock, the Convertible Preferred Stock, the Depositary Shares and the Warrants
are collectively called the "Securities."
The aggregate initial offering price of the Securities offered by the Company
hereby will not exceed $300,000,000 or its equivalent in any other currency or
composite currency determined at the applicable exchange rate at the time of
sale.
For each offering of Securities for which this Prospectus is being delivered,
there will be an accompanying Prospectus Supplement (the "Prospectus
Supplement"), which sets forth, where applicable, (i) in the case of Debt
Securities and Convertible Debt Securities, the specific designation,
aggregate principal amount, the denomination, maturity, premium, if any, the
rate (which may be fixed or variable), time and method of calculating payment
of interest, if any, on such Debt Securities or Convertible Debt Securities,
any terms of redemption at the option of the Company or the holder, terms for
sinking fund payments, and with respect to Convertible Debt Securities, terms
for conversion into Common Stock or Preferred Stock; (ii) in the case of
Preferred Stock or Convertible Preferred Stock, the specific title and stated
value, any dividend, liquidation, redemption, voting and other rights, and any
other special terms, including the terms of any Depositary Shares representing
Preferred Stock and terms for converting Convertible Preferred Stock into
other Securities; (iii) in the case of Common Stock, the number of shares of
Common Stock and the terms of offering thereof; and (iv) in the case of
Warrants, the designation and number, the exercise price, any listing of the
Warrants or the underlying Securities on a securities exchange and any other
terms in connection with the offering, sale and exercise of the Warrants. If
so specified in the applicable Prospectus Supplement, Debt Securities and
Convertible Debt Securities of a series may be issued in whole or in part in
the form of one or more temporary or permanent global securities. The
Prospectus Supplement will also contain information, as applicable, about
certain United States Federal income tax considerations relating to the
particular Securities offered thereby.
The Company may sell the Securities to or through underwriters, through
dealers or agents or directly to purchasers. See "Plan of Distribution." The
accompanying Prospectus Supplement will set forth the names of any
underwriters, dealers or agents involved in the sale of the Securities in
respect of which this Prospectus is being delivered, the amounts proposed to
be purchased by them, any applicable fee, commission or discount arrangements
with them, the initial public offering price and the net proceeds to the
Company.
The Common Stock is listed on the New York Stock Exchange under the symbol
"AR." Any shares of Common Stock sold pursuant to a Prospectus Supplement will
be listed on such exchange, subject to an official notice of issuance.
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_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is April ___, 1996.
AVAILABLE INFORMATION
Asarco is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549 and the following regional offices of the
Commission: New York regional office, Seven World Trade Center, 13th Floor,
New York, New York 10048; and Midwest regional office, Citicorp Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of
such material can be obtained at prescribed rates by writing to the
Commission, Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549. Such material can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus constitutes part of a Registration Statement filed by
Asarco with the Commission under the Securities Act of 1933, as amended (the
"Act"). This Prospectus omits certain of the information contained in the
Registration Statement, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company and the Securities offered hereby. Any statements
contained herein concerning the provisions of any document are not necessarily
complete, and, in each instance, reference is made to the copy of such
document filed as an exhibit to the Registration Statement or otherwise filed
with the Commission. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the
Company's
(i) Annual Report on Form 10-K (Commission File No. 1-164) for the
fiscal year ended December 31, 1995; and
(ii) Proxy Statement for the Annual Meeting of Stockholders on April 24,
1996 (filed with the Commission on March 8, 1996).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Securities offered hereby shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Asarco will provide without charge to each person to whom a copy of this
<PAGE>
Prospectus has been delivered, on the request of any such person, a copy of
any or all of the documents referred to above which have been or may be
incorporated in this Prospectus by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference
into such document). Requests for such copies should be directed to Augustus
B. Kinsolving, Esq., Vice President and General Counsel, ASARCO Incorporated,
180 Maiden Lane, New York, New York 10038, Telephone: (212) 510-2000.
_______________
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER OR AGENT. THIS PROSPECTUS
OR ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO
WHICH IT RELATES OR ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THE INFORMATION CONTAINED HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF AND THEREOF.
THE COMPANY
Asarco is one of the world's leading producers of nonferrous metals,
principally copper, lead, zinc, silver and molybdenum, from its own mines and
through its 54.0% interest in Southern Peru Copper Corporation ("SPCC").
Asarco also produces specialty chemicals and construction aggregates and
provides environmental services. Asarco has substantial investments in two
mining companies: a 15.1% interest in M.I.M. Holdings Limited ("MIM") in
Australia; and a 23.6% interest in Grupo Mexico, S.A. de C.V. Such companies
are referred to herein as "associated companies."
Asarco and its subsidiaries or associated companies operate mines in the
United States, Peru, Australia and Mexico. Asarco and these companies
together in 1995 accounted for about 12% of the western world mine production
of copper, 10% of silver, 21% of lead, 9% of zinc and 13% of molybdenum.
The executive offices of Asarco are located at 180 Maiden Lane, New York,
New York 10038, telephone number (212) 510-2000.
USE OF PROCEEDS
Unless otherwise set forth in the applicable Prospectus Supplement,
Asarco intends to use the net proceeds from the sale of the Securities for
general corporate purposes, which may include refinancings of indebtedness,
working capital, capital expenditures and acquisitions.
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CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES AND COMBINED
FIXED CHARGES AND PREFERRED SHARE DIVIDEND REQUIREMENTS
Year Ended December 31,
<S> <S> <S> <S> <S>
1995 1994 1993 1992 1991
5.2 1.6 (a) (a) 1.5
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_______________
(a) For the years 1992 and 1993, earnings were insufficient to cover fixed
charges by $73.3 million and $134.6 million, respectively.
The ratio of earnings to fixed charges was calculated based on
<PAGE>
information from the Company's books and records. In computing the ratio of
earnings to fixed charges, earnings consist of net earnings of the Company and
its consolidated subsidiaries plus taxes on income, fixed charges and minority
interest, plus dividends received from non-consolidated associated companies
accounted for by the equity method, less interest capitalized net of amount
amortized and less equity earnings of non-consolidated associated companies
accounted for by the equity method. Fixed charges consist of interest costs
on borrowed funds, including capitalized interest, commitment fees, and a
reasonable approximation of the imputed interest on non-capitalized lease
payments. There were no preferred shares outstanding during any of the
periods indicated and therefore the ratio of earnings to combined fixed
charges and preferred share dividend requirements would have been the same as
the ratio of earnings to fixed charges for each period indicated.
DESCRIPTION OF COMMON STOCK
The Company has authorized 80 million shares of Common Stock, without par
value, of which 42,630,720 shares were issued and outstanding as of February
29, 1996. The shares of Common Stock currently outstanding are, and the
shares of Common Stock that may be offered hereby will be, fully paid and non-
assessable. Each holder of Common Stock is entitled to one vote for each
share owned of record on all matters voted upon by stockholders, and a
majority vote is required for all action to be taken by stockholders except
for certain transactions with interested shareholders, for which a vote of 80%
of outstanding shares is required for approval. In the event of a
liquidation, dissolution or winding-up of the Company, the holders of Common
Stock are entitled to share equally and ratably in the assets of the Company,
if any, remaining after the payment of all debts and liabilities of the
Company and the liquidation preference of any outstanding Preferred Stock.
The holders of the Common Stock have no preemptive rights or cumulative voting
rights and there are no redemption, sinking fund or conversion provisions
applicable to the Common Stock.
Holders of Common Stock are entitled to receive dividends if, as and when
declared by the Board of Directors out of funds legally available for such
purpose, subject to the dividend and liquidation rights of any Preferred Stock
that may be issued.
In 1989, the Company adopted a Shareholder Rights Plan and declared a
dividend of one right (as defined therein) for each share of its Common Stock.
In certain circumstances, if a person or group becomes the beneficial owner of
15% or more of the outstanding Common Stock, with certain exceptions, these
rights vest and entitle the holder to certain share purchase rights. In
connection with the Rights dividend, 800,000 shares of Junior Participating
Preferred Stock were authorized for issuance upon exercise of the Rights. See
"Description of Preferred Share Purchase Rights".
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of
the Company's Preferred Stock to which any Prospectus Supplement may relate.
Certain terms of any series of Preferred Stock that may be offered by any
Prospectus Supplement will be described in the Prospectus Supplement relating
thereto. If so indicated in the Prospectus Supplement, the terms of any
series may differ from the terms set forth below. The description of certain
provisions of the Company's Preferred Stock does not purport to be complete
and is subject to and qualified in its entirety by reference to the provisions
of the Company's Restated Certificate of Incorporation, as amended (the
"Certificate"), and the Certificate of Designation (the "Certificate of
Designation") relating to each particular series of Preferred Stock which will
be filed or incorporated by reference, as the case may be, as an exhibit to
the Registration Statement of which this Prospectus is a part at or prior to
the time of the issuance of such Preferred Stock.
GENERAL
<PAGE>
Under the Certificate, the Board of Directors of the Company is
authorized, without further stockholder action to provide for the issuance of
up to 10 million shares of Preferred Stock. As of February 29, 1996, no
shares of Preferred Stock were issued or outstanding.
The Preferred Stock may be issued in one or more series, with such
designations or titles; dividend rates; any redemption provisions; special or
relative rights in the event of liquidation, dissolution, distribution or
winding up of the Company; any sinking fund provisions; any conversion
provisions; any voting rights thereof; and any other preferences, privileges,
powers, rights, qualifications, limitations and restrictions, as shall be set
forth as and when established by the Board of Directors of the Company. The
shares of any series of Preferred Stock will be, when issued, fully paid and
non-assessable and holders thereof will have no preemptive rights in
connection therewith.
The liquidation preference of any series of Preferred Stock is not
necessarily indicative of the price at which shares of such series of
Preferred Stock will actually trade at or after the time of their issuance.
The market price of any series of Preferred Stock can be expected to fluctuate
with changes in market and economic conditions, the financial condition and
prospects of the Company and other factors that generally influence the market
price of securities.
RANK
Any series of Preferred Stock will, with respect to rights on
liquidation, winding up and dissolution, rank (i) senior to all classes of
Common Stock and to all equity securities issued by the Company, the terms of
which specifically provide that such equity securities will rank junior to
such series of Preferred Stock (the "Junior Liquidation Securities"); (ii) on
a parity with all equity securities issued by the Company, the terms of which
specifically provide that such equity securities will rank on a parity with
such series of Preferred Stock ("Parity Liquidation Securities"); and
(iii) junior to all equity securities issued by the Company, the terms of
which specifically provide that such equity securities will rank senior to
such series of Preferred Stock (the "Senior Liquidation Securities"). In
addition, any series of Preferred Stock will, with respect to dividend rights,
rank (i) senior to all equity securities issued by the Company, the terms of
which specifically provide that such equity securities will rank junior to
such series of Preferred Stock and, to the extent provided in the applicable
Certificate of Designation, to Common Stock; (ii) on a parity with all equity
securities issued by the Company, the terms of which specifically provide that
such equity securities will rank on a parity with such series of Preferred
Stock and, to the extent provided in the applicable Certificate of
Designation, to Common Stock ("Parity Dividend Securities"); and (iii) junior
to all equity securities issued by the Company, the terms of which
specifically provide that such equity securities will rank senior to such
series of Preferred Stock. As used in any Certificate of Designation for
these purposes, the term "equity securities" will not include debt securities
convertible into or exchangeable for equity securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of the Company out of funds
legally available therefor, cash dividends at such rates and on such dates as
are set forth in the Prospectus Supplement relating to such series of
Preferred Stock. Dividends will be payable to holders of record of Preferred
Stock as they appear on the books of the Company (or, if applicable, the
records of the Depositary referred to below under "Description of Depositary
Shares") on such record dates as shall be fixed by the Board of Directors.
Dividends on any series of Preferred Stock may be cumulative or non-
cumulative.
No full dividends may be declared or paid out of funds set apart for the
<PAGE>
payment of dividends on any series of Preferred Stock unless dividends shall
have been paid or set apart for such payment on the Parity Dividend
Securities. If full dividends are not so paid, such series of Preferred Stock
shall share dividends pro rata with the Parity Dividend Securities.
CONVERSION AND EXCHANGE
The Prospectus Supplement for any series of Preferred Stock will state
the terms, if any, on which shares of that series are convertible into shares
of another series of Preferred Stock or Common Stock or exchangeable for
another series of Preferred Stock, Common Stock or Debt Securities of the
Company. The Common Stock of the Company is described above under
"Description of Common Stock."
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Company or the holder thereof and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of the
Company, or by any other method determined to be equitable by the Board of
Directors.
On and after a redemption date, unless the Company defaults in the
payment of the redemption price, dividends will cease to accrue on shares of
Preferred Stock called for redemption and all rights of holders of such shares
will terminate except for the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up
of the Company, holders of each series of Preferred Stock that ranks senior to
the Junior Liquidation Securities will be entitled to receive out of assets of
the Company available for distribution to shareholders, before any
distribution is made on any Junior Liquidation Securities, including Common
Stock, distributions upon liquidation in the amount set forth in the
Prospectus Supplement relating to such series of Preferred Stock. If the
holders of the Preferred Stock of any series and any other Parity Liquidation
Securities are not paid in full, the holders of the Preferred Stock of such
series and the Parity Liquidation Securities will share ratably in any such
distribution of assets of the Company in proportion to the full liquidation
preferences to which each is entitled. After payment of the full amount of
the liquidation preference to which they are entitled, the holders of such
series of Preferred Stock will not be entitled to any further participation in
any distribution of assets of the Company.
VOTING RIGHTS
Except as indicated in the Prospectus Supplement relating to a particular
series of Preferred Stock or except as expressly required by applicable law or
the Company's Certificate, the holders of shares of Preferred Stock will have
no voting rights.
DESCRIPTION OF PREFERRED SHARE PURCHASE RIGHTS
In 1989, the Company adopted a Shareholder Rights Plan (the "Rights
Plan") and declared a dividend of one Preferred Share Purchase Right (a
"Right") for each outstanding share of Common Stock held of record at the
close of business on August 7, 1989. Each Right entitles the registered
holder, upon the occurrence of certain events, to purchase from the Company a
unit consisting of one one-hundredth of a share (a "Unit") of Junior
<PAGE>
Participating Preferred Stock, without par value, at a purchase price of $90
per Unit.
As distributed, the Rights will be attached to and will trade together
with the Common Stock. They may be exercised or traded separately only after
the earlier to occur of: (i) 10 days following a public announcement that a
person or group of persons has obtained the right to acquire beneficial
ownership of 15% or more of the outstanding Common Stock, or (ii) 10 business
days (or such later date as the Board of Directors may determine) following
the commencement of a tender offer or exchange offer that would result in a
person or group of persons beneficially owning 15% or more of the outstanding
Common Stock. In the event that a person or group of persons acquires 15% or
more of the outstanding Common Stock (with certain exceptions), each right
will thereafter vest and entitle the holder to receive, upon exercise of the
Right, Common Stock having a value equal to two times the exercise price of
that Right. Additionally, if the Company is acquired in a merger or other
business combination, or 50% or more of the Company's assets or earning power
is sold or transferred, each Right shall thereafter have the right to receive,
upon exercise, common stock of the acquiring company having a value equal to
two times the exercise price of that Right.
In connection with the Rights Plan, 800,000 shares of Junior
Participating Preferred Stock were authorized for issuance upon exercise of
the Rights.
The Company may redeem the Rights at a price of $.01 per Right at any
time until ten days following the date a person or group of persons acquires
15% of the Company's outstanding Common Stock. The Company may amend the
Rights (other than the basic economic terms of the Rights) at any time without
shareholder approval. The Rights will expire by their terms on August 7,
1999.
The existence of the Rights Plan and the Rights may, under certain
circumstances discourage, delay or prevent a change in control of the Company.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below of certain provisions of the Deposit
Agreement (as defined below) and of the Depositary Shares and Depositary
Receipts (as defined below) does not purport to be complete and is subject to
and qualified in its entirety by reference to the forms of Deposit Agreement
and Deposit Receipt, included as exhibits to the Registration Statement of
which this Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event the
Company so elects, the Depositary will issue receipts for Depositary Shares,
each of which will represent a fraction (to be set forth in the Prospectus
Supplement relating to a particular series of Preferred Stock) of a share of a
particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and a depositary that is a bank or trust company having
its principal offices in the United States and having a combined capital
surplus of at least $50,000,000 (the "Depositary"). Subject to the terms of
the Deposit Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable fraction of a share of Preferred Stock
represented by such Depositary Share, to all the rights and preferences of the
Preferred Stock represented thereby (including dividend, voting, redemption,
conversion and liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). The Depositary
<PAGE>
Receipts will be distributed to those persons purchasing the fractional shares
of Preferred Stock in accordance with the terms of the offering.
Pending the preparation of definitive Depositary Receipts, the Depositary
shall, upon the written order of the Company or any holder of deposited
Preferred Stock, execute and deliver temporary Depositary Receipts which are
substantially identical to, and entitle the holders thereof to all the rights
pertaining to, the definitive Depositary Receipts. Depositary Receipts will
be prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at the
Company's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the deposited Preferred Stock to the
record holders of the Depositary Shares relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto. If the Depositary determines that it is not feasible to
make such distribution, it may, with the approval of the Company, sell such
property and distribute the net proceeds from such sale to such holders.
REDEMPTION OF STOCK
If a series of Preferred Stock represented by Depositary Shares is to be
redeemed, the Depositary Shares will be redeemed from the proceeds received by
the Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Stock held by the Depositary. The Depositary Shares will
be redeemed by the Depositary at a price per Depositary Share equal to the
applicable fraction of the redemption price per share payable in respect of
the shares of Preferred Stock so redeemed. If fewer than all the Depositary
Shares will be redeemed, the Depositary Shares to be redeemed will be selected
by the Depositary by lot or pro rata or by any other equitable method as may
be determined by the Depositary.
VOTING DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any series
of deposited Preferred Stock are entitled to vote, the Depositary will mail
the information contained in such notice of meeting to the record holders of
the Depositary Shares relating to such series of Preferred Stock. Each record
holder of such Depositary Shares on the record date (which will be the same
date as the record date for the relevant series of Preferred Stock) will be
entitled to instruct the Depositary as to the exercise of the voting rights
pertaining to the amount of the Preferred Stock represented by such holder's
Depositary Shares. The Depositary will endeavor, insofar as practicable, to
vote the amount of such series of Preferred Stock represented by such
Depositary Shares in accordance with such instructions, and the Company will
agree to take all reasonable actions that may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holder of Depositary Shares
representing such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of the Depositary Receipt evidencing the Depositary Shares and
any provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which
materially prejudices any substantially existing right of the holders of the
Depositary Shares representing Preferred Stock of any series will not be
effective unless such amendment has been approved by the record holders of a
majority of the Depositary Shares then outstanding. Every holder of an
<PAGE>
outstanding Depositary Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Depositary Receipt to
consent and agree to such amendment and to be bound by the Deposit Agreement
as amended thereby. The Deposit Agreement may be terminated by the Company or
by the Depositary only after (i) all outstanding Depositary Shares have been
redeemed; or (ii) each share of Preferred Stock has been converted into other
Preferred Stock or Common Stock or has been exchanged for Debt Securities; or
(iii) there has been a final distribution in respect of the Preferred Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution has been distributed to the holders of Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the depositary arrangements. The
Company will pay all charges of the Depositary in connection with the initial
deposit of the relevant series of Preferred Stock and any redemption of such
Preferred Stock. Holders of Depositary Receipts will pay other transfer and
other taxes and governmental charges and such other charges or expenses as are
expressly provided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice
of its election to do so, and the Company may at any time remove the
Depositary, any such resignation or removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company
having its principal office in the United States and having a combined capital
and surplus of at least $50,000,000.
MISCELLANEOUS
The Depositary will forward all reports and communications from the
Company that are delivered to the Depositary and that the Company is required
to furnish to the holders of the deposited Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented
or delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Depositary
under the Deposit Agreement will be limited to performance in good faith of
their duties thereunder and they will not be obligated to prosecute or defend
any legal proceeding in respect of any Depositary Shares, Depositary Receipts
or shares of Preferred Stock unless satisfactory indemnity is furnished. They
may rely upon written advice of counsel or accountants, or upon information
provided by holders of Depositary Receipts or other persons believed to be
competent and on documents believed to be genuine.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities and the Convertible Debt Securities are to be issued
under an Indenture dated as of October 1, 1994 (the "Indenture"), between the
Company and Chemical Bank, as Trustee (the "Trustee"). The following summary
statements with respect to the Debt Securities and the Convertible Debt
Securities do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, the detailed provisions of the Indenture,
the form of which is filed as an exhibit to the Registration Statement of
which this Prospectus is a part. Capitalized terms are defined in the
Indenture unless otherwise defined herein. Whenever any particular section of
the Indenture or any term defined therein is referred to, such section or
definition is incorporated herein by reference.
GENERAL
The Debt Securities and the Convertible Debt Securities offered hereby
<PAGE>
will be limited to an aggregate initial offering price not to exceed U.S.
$300,000,000 or its equivalent in any other currency or composite currency,
determined at the applicable exchange rate at the time of sale. The Indenture
does not limit the amount of Debt Securities or Convertible Debt Securities
which can be issued thereunder and provides that additional Debt Securities or
Convertible Debt Securities may be issued in one or more series thereunder up
to the aggregate principal amount which may be authorized from time to time by
the Company's Board of Directors. The Debt Securities will be unsecured
senior obligations of the Company and will rank equally and ratably with all
other unsecured unsubordinated indebtedness of the Company. The Convertible
Debt Securities may be subordinated to the Senior Indebtedness.
Reference is made to the Prospectus Supplement relating to the particular
Debt Securities or Convertible Debt Securities offered thereby for the
following terms, where applicable, of the Debt Securities or Convertible Debt
Securities: (i) the specific designation of the Debt Securities or Convertible
Debt Securities; (ii) the denominations in which such Debt Securities or
Convertible Debt Securities are authorized to be issued; (iii) the aggregate
principal amount of such Debt Securities or Convertible Debt Securities;
(iv) the date or dates on which the principal of such Debt Securities or
Convertible Debt Securities will mature or the method of determining such date
or dates; (v) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Debt Securities or Convertible Debt
Securities will be issued; (vi) the rate or rates (which may be fixed or
variable) at which such Debt Securities or Convertible Debt Securities will
bear interest, if any, or the method of calculating such rate or rates; (vii)
the times and places where principal of, premium, if any, and interest, if
any, on such Debt Securities or Convertible Debt Securities will be payable;
(viii) the date, if any, after which such Debt Securities or Convertible Debt
Securities may be redeemed and the redemption prices; (ix) the date or dates
on which interest, if any, will be payable and the record date or dates
therefor or the method by which such date or dates will be determined; (x) the
period or periods within which, the price or prices at which, the currency or
currencies (including currency units) in which, and the terms and conditions
upon which, such Debt Securities or Convertible Debt Securities may be
redeemed, in whole or in part, at the option of the Company; (xi) the
obligation, if any of the Company to redeem or purchase such Debt Securities
or Convertible Debt Securities pursuant to any sinking fund or analogous
provisions, upon the happening of a specified event or at the option of a
holder thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which, such Debt Securities or
Convertible Debt Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligations; (xii) the terms and conditions upon which
conversion of such Convertible Debt Securities will be effected, including the
conversion price, the conversion period and other conversion provisions in
addition to or in lieu of those described below; (xiii) the currency or
currency units for which such Debt Securities or Convertible Debt Securities
may be purchased or in which such Debt Securities or Convertible Debt
Securities may be denominated and/or the currency or currency units in which
principal of, premium, if any, and/or interest, if any, on such Debt
Securities or Convertible Debt Securities will be payable and whether the
Company or the holders of any such Debt Securities or Convertible Debt
Securities may elect to receive payments in respect of such Debt Securities or
Convertible Debt Securities in a currency or currency units other than that in
which such Debt Securities or Convertible Debt Securities are stated to be
payable; (xiv) if other than the principal amount thereof, the portion of the
principal amount of such Debt Securities or Convertible Debt Securities which
will be payable upon declaration of the acceleration of the maturity thereof
or the method by which such portion shall be determined; (xv) the person to
whom any interest on any such Debt Security or Convertible Debt Security shall
be payable if other than the person in whose name such Debt Security or
Convertible Debt Security is registered on the applicable record date;
(xvi) any addition to, or modification or deletion of, any Event of Default or
any covenant of the Company specified in the Indenture with respect to such
Debt Securities or Convertible Debt Securities; (xvii) the application, if
any, of such means of defeasance or covenant defeasance as may be specified
<PAGE>
for such Debt Securities or Convertible Debt Securities; (xviii) whether such
Debt Securities or Convertible Debt Securities are to be issued in whole or in
part in the form of one or more temporary or permanent global securities and,
if so, the identity of the depositary for such global security or securities;
(xix) whether such Convertible Debt Securities shall be subordinated and
subject to the right to prior payment in full of all Senior Indebtedness; and
(xx) any other special terms pertaining to such Debt Securities or Convertible
Debt Securities. Unless otherwise specified in the applicable Prospectus
Supplement, the Debt Securities or Convertible Debt Securities will not be
listed on any securities exchange. Unless otherwise provided in the
applicable Prospectus Supplement, principal and premium, if any, or interest,
if any, will be payable and the Debt Securities or Convertible Debt Securities
may be surrendered for payment or transferred at the offices of the Trustee as
paying and authenticating agent, provided that payment of interest on
Registered Securities may be made at the option of the Company by check mailed
to the address of the person entitled thereto as it appears in the Security
Register. Payment of Debt Securities or Convertible Debt Securities in bearer
form will be made at such paying agencies outside of the United States as the
Company may appoint. (Sections 301 and 1002)
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities and Convertible Debt Securities will be issued in fully
registered form without coupons in denominations set forth in the Prospectus
Supplement. No service charge will be made for any transfer or exchange of
such Debt Securities or Convertible Debt Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Section 305) Where Debt Securities
and Convertible Debt Securities of any series are issued in bearer form, the
special restrictions and considerations, including special offering
restrictions and special Federal income tax considerations, applicable to any
such Debt Securities or Convertible Debt Securities and to payment on and
transfer and exchange of such Debt Securities or Convertible Debt Securities
will be described in the Prospectus Supplement. Bearer Debt Securities and
Convertible Debt Securities will be transferrable by delivery. (Section 305)
Some of the Debt Securities and Convertible Debt Securities may be issued
at a discount (bearing no interest or interest at below market rates)
("Discount Securities") to be sold at a substantial discount below their
stated principal amount. Federal income tax consequences and other special
considerations applicable to any such Debt Securities and Convertible Debt
Securities or any Debt Securities and Convertible Debt Securities which are
denominated in a currency or composite currency other than United States
dollars will be described in the applicable Prospectus Supplement.
The Prospectus Supplement for a particular series may indicate terms for
redemption at the option of a Holder. Unless otherwise indicated in the
applicable Prospectus Supplement, the covenants contained in the Indenture and
the Debt Securities or Convertible Debt Securities (as the case may be) would
not provide for redemption at the option of a Holder nor necessarily afford
Holders thereof protection in the event of a highly leveraged or other
transaction that may adversely affect such Holders.
RESTRICTIVE COVENANTS
Definitions.
"Subsidiary" is defined to mean a corporation whose accounts are
consolidated with those of the Company in accordance with generally accepted
accounting principles. (Section 101)
"Significant Subsidiary" is defined to mean any Subsidiary of the Company
which owns a Principal Property and any Subsidiary which owns directly or
indirectly stock of a Significant Subsidiary. (Section 101)
"Consolidated Net Tangible Assets" is defined to mean the aggregate
amount of assets (less applicable reserves and other properly deductible
<PAGE>
items) after deducting (a) all current liabilities (excluding any thereof
constituting Funded Debt by reason of being renewable or extendable) and
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expense, and other like intangibles, all as set forth on the most recent
balance sheet of the Company and its consolidated Subsidiaries and computed in
accordance with generally accepted accounting principles. (Section 101)
"Funded Debt" is defined to mean all indebtedness for money borrowed
having a maturity of more than 12 months from the date as of which the amount
thereof is to be determined or having a maturity of less than 12 months but by
its terms being renewable or extendable beyond 12 months from such date at the
option of the borrower. (Section 101)
"Principal Property" is defined to mean any smelters, refineries, mines,
concentrators or other facilities, located within the present 50 states of the
United States of America (other than its territories or possessions), owned by
the Company or any Subsidiary and the gross book value of which (without
deduction of any depreciation reserves) on the date as of which the
determination is being made exceeds 3% of Consolidated Net Tangible Assets,
other than any such facility or portion thereof which is pollution control or
other equipment or facility financed by obligations issued by a State or local
government unit and other than any smelters, refineries, mines, concentrators
or facilities or any portions thereof which the Board of Directors of the
Company declares by resolution are not of material importance to the total
business conducted by the Company and its Subsidiaries as an entirety.
(Section 101)
"Nonrecourse Obligations" is defined to mean indebtedness or lease
payment obligations substantially related to (i) the acquisition of assets not
currently owned by the Company or any of its Significant Subsidiaries or
(ii) the financing of the construction or improvement of equipment, mines or
facilities involving the development of properties of the Company or any of
its Significant Subsidiaries, as to which the obligee with respect to such
indebtedness or obligation has no recourse to the general corporate funds or
the assets, in general, of the Company or any of its Significant Subsidiaries.
(Section 1004)
"Debt" is defined to mean notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed. (Section 1004)
"Attributable Debt" is defined to mean as to any particular Capitalized
Lease under which any Person is at the time liable, at any date as of which
the amount thereof is to be determined, the total net amount of rent required
to be paid by such Person under such Capitalized Lease during the remaining
primary term thereof, discounted from the respective due dates thereof to such
date at the rate of interest per annum implicit in the terms of such
Capitalized Lease, as determined in good faith by the Company, compounded
semi-annually. The net amount of rent required to be paid under any such
Capitalized Lease for any such period shall be the amount of the rent payable
by the lessee with respect to such period, after excluding amounts required to
be paid on account of maintenance, repairs, insurance, taxes, assessments,
water rates and similar charges. In the case of any Capitalized Lease which
is terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but shall not include any rent
required to be paid under such Capitalized Lease subsequent to the first date
upon which it may be so terminated. (Section 101)
"Senior Indebtedness" is defined to mean all Debt of the Company,
including principal and interest (and premium, if any) (including, without
limitation, any interest that would accrue but for the occurrence of any event
specified in paragraphs (6) and (7) of "-- Events of Default") on such Debt
except (i) existing subordinated Debt Securities or subordinated Convertible
Debt Securities, (ii) such indebtedness as is by its terms expressly stated to
be junior in right of payment to the subordinated Debt Securities or
subordinated Convertible Debt Securities, and (iii) such indebtedness as is by
its terms expressly stated to rank pari passu with the subordinated Debt
<PAGE>
Securities or subordinated Convertible Debt Securities. (Section 101)
RESTRICTIONS ON SECURED DEBT (SECTION 1004)
The Company has covenanted that it will not itself, and will not permit
any Subsidiary to, incur, issue, assume or guarantee any Debt secured after
the date of the Indenture by pledge of, or mortgage or other lien on
("Mortgage"), any Principal Property of the Company or any Significant
Subsidiary, or any shares of stock or Debt of any Significant Subsidiary
without effectively providing that the Debt Securities or Convertible Debt
Securities of all series issued pursuant to the Indenture (together with, if
the Company shall so determine, any other Debt of the Company or such
Significant Subsidiary then existing or thereafter created which is not
subordinate to the Debt Securities or Convertible Debt Securities) shall be
secured equally and ratably with (or, at the option of the Company, prior to)
such secured Debt, so long as such secured Debt shall be so secured, unless
after giving effect thereto, the aggregate principal amount of all such
secured Debt then outstanding which would otherwise be prohibited, plus all
Attributable Debt of the Company and its Significant Subsidiaries in respect
of sale and leaseback transactions (as defined in "-- Restrictions on Sales and
Leasebacks") occurring after the date of the Indenture which would otherwise
be prohibited by the covenant described in "-- Restrictions on Sales and
Leasebacks", would not exceed 10% of Consolidated Net Tangible Assets. This
restriction does not apply to, and there shall be excluded in computing
secured Debt for the purpose of such restriction, Debt secured by:
(1) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a Significant
Subsidiary;
(2) Mortgages in favor of the Company or any Significant Subsidiary;
(3) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political subdivision
of the United States of America or any State thereof, or in favor of any other
country, or any political subdivision thereof, to secure partial, progress,
advance or other payments pursuant to any contract or statute, or Mortgages
for taxes, assessments or governmental charges or levies in each case (i) not
then due and delinquent or (ii) the validity of which is being contested in
good faith by appropriate proceedings, and materialmen's, mechanics',
carriers', workmen's, repairmen's, landlord's or other like Mortgages, or
deposits to obtain the release of such Mortgages;
(4) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase
price or construction cost thereof or to secure any Debt incurred prior to, at
the time of, or within 180 days after, the acquisition of such property or
shares or Debt or the completion of any such construction for the purpose of
financing all or any part of the purchase price or construction cost thereof,
provided that any such Mortgage shall only extend to the property acquired or
constructed or property on which the acquired or constructed property is
situated;
(5) Mortgages securing obligations issued by a State, territory or
possession of the United States of America, or any political subdivision of
any of the foregoing, to finance the acquisition or construction of property,
and on which the interest is not, in the opinion of tax counsel of recognized
standing or in accordance with a ruling issued by the Internal Revenue
Service, includible in gross income of the holder by reason of Section 103(a)
of the Internal Revenue Code (or any successor to such provision) as in effect
at the time of the issuance of such obligations, including, without
limitation, Debt related to the financing of pollution control or other
equipment or facilities financed by State or local government units;
(6) Mortgages created in connection with a project financed, or
<PAGE>
assets acquired, with, and created to secure any Nonrecourse Obligations;
(7) Production payments or other related rights of others to the
output of mines, refineries, smelters, concentrators or production facilities,
including project financings, with respect to any property or assets acquired,
constructed or improved by the Company or a Subsidiary with the proceeds of
such project financings or Mortgages to secure payment of workmen's
compensation or to secure performance in connection with tenders, leases of
real property, bids or contracts or to secure (or in lieu of) surety or appeal
bonds and Mortgages made in the ordinary course of business for similar
purposes; and
(8) Any extension, renewal, refunding or replacement (or successive
extensions, renewals, refundings or replacements), as a whole or in part, of
any Mortgage referred to in the foregoing clauses (1) to (7), inclusive;
provided, however, that (i) such extension, renewal, refunding or replacement
Mortgage shall be limited to all or a part of the same property, shares of
stock or Debt that secured the Mortgage extended, renewed, refunded or
replaced (plus improvements on such property) and (ii) the Debt secured by
such Mortgage at such time is not increased.
RESTRICTIONS ON SALES AND LEASEBACKS (SECTION 1005)
The Company has covenanted that it will not itself, and will not permit
any Significant Subsidiary to, enter into any arrangement with any bank,
insurance company or other lender or investor (not including the Company or
any Significant Subsidiary) or to which any such lender or investor is a
party, providing for the leasing by the Company or any such Significant
Subsidiary of any Principal Property which has been or is to be sold or
transferred by the Company or such Significant Subsidiary to such lender or
investor or to any Person to whom funds have been or are to be advanced by
such lender or investor (each, a "sale and leaseback transaction") unless,
after giving effect thereto, the aggregate amount of all Attributable Debt
with respect to all such transactions occurring after the date of the
Indenture and existing at such time plus all secured Debt then outstanding of
the Company and its Significant Subsidiaries incurred after the date of the
Indenture which would otherwise be prohibited by the covenant described in "--
Restrictions on Secured Debt" above, would not exceed 10% of Consolidated Net
Tangible Assets. This restriction does not apply to, and there shall be
excluded from Attributable Debt in any computation under such restriction,
Attributable Debt with respect to any sale and leaseback transaction if:
(1) the lease in such sale and leaseback transaction is for a
period, including renewals, of not in excess of three years, or
(2) such sale and leaseback transaction is entered into prior to, at
the time of, or within 180 days after the later of the acquisition of the
Principal Property to which such sale and leaseback transaction relates or the
completion of construction thereon, or
(3) the lease in such sale and leaseback transaction secures or
relates to obligations issued by a State, territory or possession of the
United States of America, or any political subdivision of any of the
foregoing, to finance the acquisition or construction of property, and on
which the interest is not, in the opinion of tax counsel of recognized
standing or in accordance with a ruling issued by the Internal Revenue
Service, includible in gross income of the holder by reason of Section 103(a)
of the Internal Revenue Code (or any successor to such provision) as in effect
at the time of the issuance of such obligations, including, without
limitation, Debt related to the financing of pollution control or other
equipment or facilities financed by State or local government units, or
(4) such sale and leaseback transaction is entered into between the
Company and a Significant Subsidiary or between Significant Subsidiaries, or
(5) such sale and leaseback transaction is created in connection
<PAGE>
with a project financed, or assets acquired, with, and such obligation
constitutes, a Nonrecourse Obligation, or
(6) the Company or a Significant Subsidiary, within 180 days after
the sale or transfer shall have been made by the Company or by any such
Significant Subsidiary, applies an amount not less than the greater of (i) the
net proceeds of the sale of the Principal Property sold and leased back
pursuant to such arrangement or (ii) the fair market value of the Principal
Property so sold and leased back at the time of entering into such arrangement
(as determined by any two of the following officers of the Company: the
Chairman of the Board of Directors, the President, any Vice President, the
Treasurer and the Controller) to (x) the purchase of property, facilities or
equipment (other than the property, facilities or equipment involved in such
sale) which will constitute Principal Property or (y) the retirement of Funded
Debt of the Company or any Significant Subsidiary; provided, however, that the
amount to be applied to the retirement of Funded Debt of the Company or any
Significant Subsidiary shall be reduced by (i) the principal amount of any
Funded Debt (including the Debt Securities or Convertible Debt Securities of
any series) of the Company or any Significant Subsidiary (or, if the Debt
Securities or Convertible Debt Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be due and
payable with respect to such series pursuant to a declaration in accordance
with Section 502 of the Indenture), delivered within 180 days after such sale
to the Trustee or other applicable trustee for retirement and cancellation,
and (ii) the principal amount of Funded Debt, other than any Funded Debt
referred to in the immediately preceding clause (i) of this proviso,
voluntarily retired by the Company or a Significant Subsidiary within 180 days
after such sale; and provided, further, that, notwithstanding the foregoing,
no retirement referred to in this clause (y) may be effected by payment at
Maturity or pursuant to any mandatory sinking fund payment or any mandatory
redemption provision.
SUBORDINATION
The Convertible Debt Securities may be subordinated and junior in right
of payment, to the extent set forth in the applicable Prospectus Supplement,
to all "Senior Indebtedness" of the Company as defined in the applicable
Prospectus Supplement.
EVENTS OF DEFAULT (SECTION 501)
The following are Events of Default with respect to Debt Securities or
Convertible Debt Securities of each series:
(1) default in the payment of the principal of, or any premium on,
any of the Debt Securities or Convertible Debt Securities of such series as
and when the same shall become due and payable either at Stated Maturity, upon
redemption, by declaration or otherwise; or
(2) default in the payment of any installment of interest, if any,
upon any of the Debt Securities or Convertible Debt Securities of such series
as and when it shall become due and payable, and continuance of such default
for a period of 30 days; or
(3) default in the payment of any sinking fund payment, when and as
due and payable by the terms of the Debt Securities or Convertible Debt
Securities of such series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in the Indenture or the Debt Securities or
Convertible Debt Securities of such series (other than a covenant or agreement
a default in the performance or a breach of which is otherwise specified as an
Event of Default or which has expressly been included in the Indenture and
designated as being solely for the benefit of such series of Debt Securities
or Convertible Debt Securities other than such series), and continuance of
such default or breach for a period of 60 days after there has been given, by
<PAGE>
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the Debt
Securities or Convertible Debt Securities of such series then outstanding, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" under the
Indenture; or
(5) a default under any Debt in excess of $25,000,000 of the Company
or any Significant Subsidiary (including a default with respect to Debt
Securities or Convertible Debt Securities of any series other than such
series) or under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any such indebtedness
for money borrowed by the Company or any Significant Subsidiary (including the
Indenture), whether such indebtedness is existing or shall thereafter be
created, which default shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such involuntary acceleration having been
rescinded or annulled within a period of 30 days after there shall have been
given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Debt Securities or Convertible Debt Securities of such
series then Outstanding a written notice specifying such default and requiring
the Company to cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" under the Indenture; provided,
however, that, if such default shall be remedied or cured by the Company or
waived by the holders of such indebtedness, then the Event of Default under
the Indenture by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without any action on the part of the
Trustee or any of the holders; or
(6) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law then or thereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for all or substantially
all of its property or ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a period of
90 consecutive days; or
(7) the Company shall commence a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law then or thereafter in effect, or consent to the entry of an
order for relief in an involuntary case under any such law, or consent to the
appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or for
all or substantially all of its property, or make any general assignment for
the benefit of creditors; or
(8) any other Event of Default provided with respect to Debt
Securities or Convertible Debt Securities of such series.
ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
If an Event of Default with respect to Debt Securities or Convertible
Debt Securities of any series at the time Outstanding occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Debt Securities or Convertible Debt Securities of such series shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Debt Securities or
Convertible Debt Securities of such series then outstanding, by notice in
writing to the Company (and to the Trustee if given by Holders), may declare
the entire principal amount (or, if the Debt Securities or Convertible Debt
Securities of such series are Original Issue Discount Securities (as defined
in the Indenture), such portion of the principal as may be specified in the
terms of such series) of all of the Debt Securities or Convertible Debt
<PAGE>
Securities of such series and any premium and interest accrued thereon to be
due and payable immediately, and upon any such declaration such principal
amount (or specified amount) and any premium and interest accrued thereon
shall become immediately due and payable.
However, at any time after a declaration of acceleration with respect to
Debt Securities or Convertible Debt Securities of any series has been made,
but before a judgment or decree based on such acceleration has been obtained,
the Holders of a majority in principal amount of Outstanding Securities of
that series may, under certain circumstances, rescind and annul such
acceleration. (Section 502) For information as to waiver of defaults, see
"Modification and Waiver."
Reference is made to the Prospectus Supplement relating to each series of
Debt Securities or Convertible Debt Securities which are Discount Securities
for the particular provisions relating to acceleration of the Maturity of a
portion of the principal amount of such Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under
no obligation to exercise any of its rights or powers under the Indenture at
the request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for indemnification of the Trustee, the Holders of a majority in
principal amount of the Outstanding Securities of any series will have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Debt Securities or Convertible
Debt Securities of that series. (Section 512)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1006)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of 662/3% in principal amount of
the Outstanding Securities of each series affected thereby (each such series
voting as a single class); provided, however, that no such modification or
amendment may, without the consent of the Holder of each Outstanding Security
affected thereby, (a) change the Stated Maturity of the principal, or any
installment of principal of or interest on, any Debt Security or Convertible
Debt Security, (b) reduce the principal amount thereof, or reduce any premium
thereof or change the time of payment of any premium thereon, (c) reduce the
rate or change the time of payment of interest thereon, if any, (d) reduce any
amount payable on redemption of any such Security (if any), (e) reduce the
Overdue Rate thereof, (f) change the place or currency of payment of principal
of, or any premium or interest thereon, (g) reduce the amount of principal of
any Original Issue Discount Security payable upon acceleration of the Maturity
thereof or the amount thereof provable in bankruptcy, (h) impair, if
applicable, any right of repayment at the option of the Holder, (i) impair the
right to institute suit for the enforcement of any payment on or with respect
to any Debt Security or Convertible Debt Security, or (j) reduce the
percentage in principal amount of Outstanding Securities of any series, the
consent of the Holders of which is required for modification or amendment of
the Indenture or for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults, or (k) alter or impair the right
of any Holder to convert Securities of any series, if applicable, at the rate
and upon the terms established pursuant to the Indenture. (Section 902)
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all Debt
Securities or Convertible Debt Securities of that series waive, insofar as
that series is concerned, compliance by the Company with certain restrictive
<PAGE>
provisions of the Indenture. (Section 1007) The Holders of a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all Debt Securities or Convertible Debt Securities of that
series waive any past default under the Indenture with respect to Debt
Securities or Convertible Debt Securities of that series, except a default not
theretofore cured in the payment of the principal of (or premium, if any) or
interest on any Debt Securities or Convertible Debt Securities of that series
or in respect of any provision which under the Indenture cannot be modified or
amended without the consent of the Holder of each Outstanding Security of that
series affected. (Section 513)
The Indenture contains provisions permitting the Company and the Trustee
to enter into one or more supplemental indentures without the consent of the
Holders of any of the Debt Securities or Convertible Debt Securities in order
(i) to evidence the succession of another corporation to the Company and the
assumption of the covenants of the Company by a successor to the Company;
(ii) to add to the covenants of the Company or surrender any right or power of
the Company; (iii) to add additional Events of Default with respect to any
series of Debt Securities or Convertible Debt Securities; (iv) to add to,
change or eliminate any provision affecting Debt Securities or Convertible
Debt Securities not yet issued; (v) to secure the Debt Securities or
Convertible Debt Securities; (vi) to establish the form or terms of Debt
Securities or Convertible Debt Securities; (vii) to evidence and provide for a
successor Trustee; and (viii) to cure any ambiguity or correct any mistake or
to correct any defect or supplement any inconsistent provisions or to make any
other provisions with respect to matters or questions arising under the
Indenture, provided that such action does not adversely affect the interests
of any Holder of Debt Securities or Convertible Debt Securities of any series.
(Section 901)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may not consolidate or merge with or into, or transfer or
lease all or substantially all its assets to, any Person, and any other Person
may not consolidate or merge with or into, the Company, unless (i) the Person
(if other than the Company) formed by such consolidation or into which the
Company is merged or which acquires or leases all or substantially all the
assets of the Company is organized and existing under the laws of the United
States, any state thereof or the District of Columbia and expressly assumes
all of the Company's obligations under the Debt Securities or Convertible Debt
Securities and under the Indenture, (ii) immediately after giving effect to
such transaction no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have happened
and be continuing (provided that a transaction will only be deemed to be in
violation of this condition (ii) as to any series of Debt Securities or
Convertible Debt Securities as to which such Event of Default or such event
shall have occurred and be continuing), and (iii) certain other conditions are
met.
SATISFACTION, DISCHARGE, AND DEFEASANCE PRIOR TO MATURITY OR REDEMPTION
Covenant Defeasance of any Series
If the Company shall deposit with the Trustee, in trust, at or before
maturity or redemption of the Debt Securities or Convertible Debt Securities
of any series, money and/or Government Obligations in such amounts and
maturing at such times such that the proceeds of such obligations to be
received upon the respective maturities and interest payment dates of such
obligations will provide funds sufficient, without reinvestment, in the
opinion of a nationally recognized firm of independent public accountants, to
pay when due the principal of (and premium, if any) and each installment of
principal of (and premium, if any) and interest on such series of Debt
Securities or Convertible Debt Securities at the Stated Maturity of such
principal or installment of principal or interest, as the case may be, then
the Company may omit to comply with certain of the terms of the Indenture with
respect to that series of Debt Securities or Convertible Debt Securities,
<PAGE>
including the restrictive covenants described above, and the Events of Default
described in clauses (4) and (5) under "Events of Default" above shall not
apply. Defeasance of Debt Securities or Convertible Debt Securities of any
series is subject to the satisfaction of certain conditions, including among
others: (1) the absence of an Event of Default or event which, with notice or
lapse of time, would become an Event of Default at the date of the deposit,
(2) the delivery to the Trustee by the Company of an Opinion of Counsel to the
effect that Holders of the Debt Securities or Convertible Debt Securities of
such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and covenant defeasance and will be
subject to Federal income tax in the same amounts and in the same manner and
at the same times as would have been the case if such deposit and covenant
defeasance had not occurred, (3) such covenant defeasance will not cause any
Debt Securities or Convertible Debt Securities of such series then listed on
any nationally recognized securities exchange to be delisted, (4) that such
covenant defeasance will not result in a breach of, or constitute a default
under, any instrument by which the Company is bound and (5) such covenant
defeasance shall not cause the Trustee for the Securities of such series to
have conflicting interest for purposes of the Trust Indenture Act with respect
to any securities of the Company. If indicated in the Prospectus Supplement
relating to a series of Debt Securities or Convertible Debt Securities, in
addition to the obligations of the United States of America or obligations
guaranteed by the United States of America, Government Obligations may include
obligations of the government, and obligations guaranteed by such government,
issuing the currency or currency unit in which Debt Securities or Convertible
Debt Securities of such series are payable. (Section 1304)
Defeasance of any Series
Upon the deposit of money or securities as contemplated in the preceding
paragraph and the satisfaction of certain other conditions, the Company may
also omit to comply with its obligation duly and punctually to pay the
principal of (and premium, if any) and interest on a particular series of Debt
Securities or Convertible Debt Securities, and any Events of Default with
respect thereto shall not apply, and thereafter, the Holders of Debt
Securities or Convertible Debt Securities of such series shall be entitled
only to payment out of the money or securities deposited with the Trustee.
(Section 1304) Such conditions include among others: (1) the absence of an
Event of Default or event which, with notice or lapse of time, would become an
Event of Default at the date of the deposit, (2) the delivery to the Trustee
by the Company of an Opinion of Counsel, which refers to or is based on a
ruling of the Internal Revenue Service or a change in the applicable Federal
income tax law occurring after the date of the Indenture, to the effect that
Holders of the Debt Securities or Convertible Debt Securities of such series
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit and the satisfaction, discharge and defeasance, and
will be subject to Federal income tax in the same amounts and in the same
manner and at the same times as would have been the case if such deposit and
defeasance had not occurred, (3) such defeasance will not cause any Debt
Securities or Convertible Debt Securities of such series then listed on any
nationally recognized securities exchange to be delisted, (4) that such
defeasance will not result in a breach of, or constitute a default under, any
instrument by which the Company is bound and (5) such defeasance shall not
cause the Trustee for the Securities of such series to have a conflicting
interest for the purpose of the Trust Indenture Act with respect to any
securities of the Company. (Section 1304)
Federal Income Tax Consequences
Under current Federal income tax law, the deposit and defeasance
described above under "Covenant Defeasance of any Series" will not result in a
taxable event to any Holder of Debt Securities or Convertible Debt Securities
or otherwise affect the Federal income tax consequences of an investment in
Debt Securities or Convertible Debt Securities of any series.
The Federal income tax treatment of the deposit and defeasance described
<PAGE>
above under "Defeasance of any Series" is not clear. A deposit and defeasance
may be treated as a taxable exchange of such Debt Securities or Convertible
Debt Securities for beneficial interests in the trust consisting of the
deposited money or securities. In that event, a Holder of Debt Securities or
Convertible Debt Securities would be required to recognize gain or loss equal
to the difference between the Holder's adjusted basis for the Debt Securities
or Convertible Debt Securities and the fair market value of the Holder's
beneficial interest in such trust. Thereafter, such Holder would be required
to include in income a share of the income, gain, and loss of the trust. As
described above, it is a condition to such a deposit and defeasance that the
Company obtain an opinion of tax counsel to the effect that such deposit and
defeasance will not alter the Holder's tax consequences that would have been
applicable in the absence of the deposit and defeasance. Purchasers of the
Debt Securities or Convertible Debt Securities should consult their own
advisers with respect to the tax consequences to them of such deposit and
defeasance, including the applicability and effect of tax laws other than
Federal income tax law.
CONVERTIBLE DEBT SECURITIES
The following provisions will apply to Convertible Debt Securities,
unless otherwise provided in the applicable Prospectus Supplement for such
Convertible Debt Securities. The holder of any Convertible Debt Securities
will have the right exercisable at any time prior to maturity, or prior to
such other date as may be specified in the applicable Prospectus Supplement,
unless previously redeemed by the Company, to convert such Convertible Debt
Securities into shares of Common Stock or Preferred Stock of the Company at
the conversion price set forth in the applicable Prospectus Supplement,
subject to adjustment. The holder of Convertible Debt Securities may convert
any portion thereof which is $1,000 or any integral multiple of $1,000. In
the case of Convertible Debt Securities called for redemption, conversion
rights will expire at the close of business on the date fixed for the
redemption unless the Company shall default in payment of the redemption
price, except that in the case of redemption at the option of the Holder
thereof, if applicable, the conversion right will terminate upon receipt of
written notice of the exercise of such option. (Section 1402) In certain
events, the conversion price will be subject to adjustment as set forth in the
applicable Prospectus Supplement. Fractional shares of Common Stock or
Preferred Stock will not be issued upon conversion, but, in lieu thereof, the
Company will pay a cash adjustment based on the then current market price for
the Common Stock or Preferred Stock. (Section 1406)
Subordination of Convertible Debt Securities
The obligation of the Company to make payment on account of the principal
of, and premium, if any, and interest on the Convertible Debt Securities may
be subordinated and junior in right of payment, to the extent and in the
manner set forth in the Prospectus Supplement relating to any Convertible Debt
Securities, to the prior payment in full of all Senior Indebtedness of the
Company.
In the event (a) of any insolvency or bankruptcy proceedings, or any
receivership, dissolution, winding-up, total or partial liquidation,
reorganization or other similar proceedings in respect of the Company or a
substantial part of its property, whether voluntary or involuntary, or
(b) that (i) a default shall have occurred with respect to the payment of
principal of (and premium, if any) or any interest on or other monetary
amounts due and payable on any Senior Indebtedness in an amount in excess of
$25,000,000 or (ii) there shall have occurred an event of default (other than
a default in the payment of principal, premium, if any, or interest, or other
monetary amounts due and payable) in respect of any Senior Indebtedness, as
defined therein or in the instrument under which the same is outstanding,
permitting the holder or holders thereof to accelerate the maturity thereof
and such default or event of default shall not have been cured or waived or
shall not have ceased to exist, or (iii) separately with respect to each
series of Securities, if immediately after giving effect to any payment of
<PAGE>
principal, premium, if any, or interest on such series of Securities there
would occur an event of default (other than a default in the payment of
principal or interest or other monetary amounts due and payable) in respect of
any Senior Indebtedness, as defined therein or in the instrument under which
the same is outstanding, permitting the holder or holders thereof to
accelerate the maturity thereof and such default or event of default shall not
have been cured or waived or shall not have ceased to exist, or (c) that the
principal of and accrued interest on any subordinated Convertible Debt
Securities shall have been declared due and payable upon an Event of Default
pursuant to the Indenture and such declaration shall not have been rescinded
and annulled as provided therein, then the holders of all Senior Indebtedness
shall first be entitled to receive payment of the full amount unpaid thereon,
or provision shall be made, in accordance with the relevant Senior
Indebtedness, for such payment in money or money's worth, before the Holders
of any of the subordinated Convertible Debt Securities are entitled to receive
any payment on account of the principal of (and premium, if any) or any
interest on the indebtedness evidenced by such subordinated Convertible Debt
Securities or any cash payments to repurchase such subordinated Convertible
Debt Securities at the option of the holders thereof or otherwise. By reason
of such subordination, in the event of insolvency, creditors of the Company
(including holders of subordinated Convertible Debt Securities) who are not
holders of Senior Indebtedness may recover less, ratably, than holders of
Senior Indebtedness.
REGARDING THE TRUSTEE
The Indenture, by reference to Section 315 of the Trust Indenture Act,
provides that, except during the continuance of an Event of Default, the
Trustee shall perform only such duties as are specifically set forth in the
Indenture. During the continuance of any Event of Default, the Trustee shall
exercise such of the rights and powers vested in it under the Indenture and
use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
The Trustee may acquire and hold Debt Securities or Convertible Debt
Securities and, subject to certain conditions, otherwise deal with the Company
as if it were not the Trustee under the Indenture. (Section 605)
The Company maintains deposit accounts and conducts other banking
transactions with the Trustee in the ordinary course of the Company's
business.
DESCRIPTION OF WARRANTS
DEBT WARRANTS
The Company may issue, together with other Securities or separately, Debt
Warrants for the purchase of Debt Securities or Convertible Debt Securities.
The Debt Warrants are to be issued under Debt Warrant Agreements (each a "Debt
Warrant Agreement") to be entered into between the Company and a bank or trust
company, as Debt Warrant Agent (the "Debt Warrant Agent"), all as to be set
forth in a Prospectus Supplement relating to Debt Warrants. A copy of the
form of Debt Warrant Agreement, including the form of Warrant Certificates
representing the Debt Warrants (the "Debt Warrant Certificates"), reflecting
the alternative provisions to be included in the Debt Warrant Agreements that
will be entered into with respect to particular offerings of Debt Warrants, is
filed as an exhibit to the Registration Statement of which this Prospectus
forms a part. The following summaries of certain provisions of the Debt
Warrant Agreement and the Debt Warrant Certificates do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Debt Warrant Agreement and the Debt Warrant
Certificates, respectively, including the definitions therein of certain
capitalized terms not defined herein.
General. Reference is made to the applicable Prospectus Supplement for
<PAGE>
the terms of Debt Warrants in respect of which this Prospectus is being
delivered, the Debt Warrant Agreement relating to such Debt Warrants and the
Debt Warrant Certificates representing such Debt Warrants, including the
following: (1) the designation, aggregate principal amount and terms of the
Debt Securities or Convertible Debt Securities purchasable upon exercise of
such Debt Warrants and the procedures and conditions relating to the exercise
of such Debt Warrants; (2) the designation and terms of any related Debt
Securities or Convertible Debt Securities with which such Debt Warrants are
issued and the number of such Debt Warrants issued with each such Debt
Security or Convertible Debt Security; (3) the date, if any, on and after
which such Debt Warrants and the related Debt Securities or Convertible Debt
Securities will be separately transferable; (4) the principal amount of Debt
Securities or Convertible Debt Securities purchasable upon exercise of each
Debt Warrant and the price at which such principal amount of Debt Securities
or Convertible Debt Securities may be purchased upon such exercise; (5) the
date on which the right to exercise such Debt Warrants shall commence and the
date on which such right shall expire; (6) if the Debt Securities or
Convertible Debt Securities purchasable upon exercise of such Debt Warrants
are original issue discount Debt Securities, a discussion of Federal income
tax considerations applicable thereto; and (7) whether the Debt Warrants
represented by the Debt Warrant Certificates will be issued in registered or
bearer form, and, if registered, where they may be transferred and registered.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Debt Warrant Agent or any other office
indicated in the applicable Prospectus Supplement. Prior to the exercise of
their Debt Warrants, holders of Debt Warrants will not have any of the rights
of holders of the Debt Securities or Convertible Debt Securities purchasable
upon such exercise and will not be entitled to payments of principal of (and
premium, if any) or interest, if any, on the Debt Securities or Convertible
Debt Securities purchasable upon such exercise.
Exercise of Debt Warrants. Each Debt Warrant will entitle the holder to
purchase for cash such principal amount of Debt Securities or Convertible Debt
Securities at such exercise price as shall in each case be set forth in, or be
determinable as set forth in, the applicable Prospectus Supplement relating to
the Debt Warrants offered thereby. Debt Warrants may be exercised at any time
up to 5:00 p.m. New York City time on the expiration date set forth in the
applicable Prospectus Supplement. After 5:00 p.m. New York City time on the
expiration date, unexercised Debt Warrants will become void.
Debt Warrants may be exercised as set forth in the applicable Prospectus
Supplement relating to the Debt Warrants. Upon receipt of payment and the
Debt Warrant Certificate properly completed and duly executed at the corporate
trust office of the Debt Warrant Agent or any other office indicated in the
applicable Prospectus Supplement, the Company will, as soon as practicable,
forward the Debt Securities or Convertible Debt Securities purchasable upon
such exercise. If less than all of the Debt Warrants represented by such Debt
Warrant Certificate are exercised, a new Debt Warrant Certificate will be
issued for the remaining amount of Debt Warrants.
COMMON STOCK WARRANTS
The Company may issue, together with other securities or separately,
Common Stock Warrants for the purchase of Common Stock. The Common Stock
Warrants are to be issued under Common Stock Warrant Agreements (each a
"Common Stock Warrant Agreement") to be entered into between the Company and a
bank or trust company, as Common Stock Warrant Agent (the "Common Stock
Warrant Agent"), all as to be set forth in the applicable Prospectus
Supplement relating to Common Stock Warrants in respect of which this
Prospectus is being delivered. A copy of the form of Common Stock Warrant
Agreement, including the form of Warrant Certificates representing the Common
Stock Warrants (the "Common Stock Warrant Certificates") reflecting the
provisions to be included in the Common Stock Warrant Agreements that will be
entered into with respect to particular offerings of Common Stock Warrants, is
<PAGE>
filed as an exhibit to the Registration Statement of which this Prospectus
forms part. The following summaries of certain provisions of the Common Stock
Warrant Agreement and the Common Stock Warrant Certificates do not purport to
be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Common Stock Warrant Agreement and the
Common Stock Warrant Certificates, respectively, including the definitions
therein of certain capitalized terms not defined herein.
General. Reference is made to the applicable Prospectus Supplement for
the terms of Common Stock Warrants in respect of which this Prospectus is
being delivered, the Common Stock Warrant Agreement relating to such Common
Stock Warrants and the Common Stock Warrant Certificates representing such
Common Stock Warrants, including the following: (1) the offering price of such
Common Stock Warrants, if any; (2) the procedures and conditions relating to
the exercise of such Common Stock Warrants; (3) the number of shares of Common
Stock purchasable upon exercise of each Common Stock Warrant and the initial
price at which such shares may be purchased upon exercise; (4) the date on
which the right to exercise such Common Stock Warrants shall commence and the
date on which such right shall expire; (5) a discussion of U.S. Federal
income tax considerations applicable to the exercise of Common Stock Warrants;
(6) call provisions of such Common Stock Warrants, if any; and (7) any other
terms of the Common Stock Warrants.
Prior to the exercise of their Common Stock Warrants, holders of the
Common Stock Warrants will not have any of the rights of holders of the Common
Stock purchasable upon such exercise, and will not be entitled to any dividend
payments on the Common Stock purchasable upon such exercise.
Exercise of Stock Warrants. Each Common Stock Warrant will entitle the
holder to purchase for cash such number of shares of Common Stock at such
exercise price as shall in each case be set forth in, or be determinable as
set forth in, the applicable Prospectus Supplement relating to the Common
Stock Warrants offered thereby. Unless otherwise specified in the applicable
Prospectus Supplement, Common Stock Warrants may be exercised at any time up
to 5:00 p.m. New York City time on the expiration date set forth in the
applicable Prospectus Supplement. After 5:00 p.m. New York City time on the
expiration date, unexercised Common Stock Warrants will become void.
Common Stock Warrants may be exercised as to be set forth in the
applicable Prospectus Supplement relating to the Common Stock Warrants in
respect of which this Prospectus is being delivered. Upon receipt of payment
and the Common Stock Warrant Certificates properly completed and duly executed
at the corporate trust office of the Common Stock Warrant Agent or any other
office indicated in the applicable Prospectus Supplement, the Company will, as
soon as practicable, forward a certificate representing the number of shares
of Common Stock purchasable upon such exercise. If less than all of the
Common Stock Warrants represented by such Common Stock Warrant Certificate are
exercised, a new Common Stock Warrant Certificate will be issued for the
remaining amount of Common Stock Warrants.
Antidilution Provisions. Unless otherwise specified in the applicable
Prospectus Supplement, the exercise price payable and the number of shares
purchasable upon the exercise of each Common Stock Warrant will be subject to
adjustment in certain events, including (1) the issuance of a stock dividend
to holders of Common Stock or a combination, subdivision or reclassification
of Common Stock; (2) the issuance of rights, warrants or options to all
holders of Common Stock entitling the holders thereof to purchase Common Stock
for an aggregate consideration per share less than the current market price
per share of the Common Stock; or (3) any distribution by the Company to the
holders of its Common Stock of evidences of indebtedness of the Company or of
assets (excluding cash dividends or distributions payable out of capital
surplus and dividends and distributions referred to in (1) above). No
fractional shares will be issued upon exercise of Common Stock Warrants, but
the Company will pay the cash value of any fractional shares otherwise
issuable.
<PAGE>
PREFERRED STOCK WARRANTS
The Company may issue, together with other securities or separately,
Preferred Stock Warrants for the purchase of Preferred Stock or Convertible
Preferred Stock. The Preferred Stock Warrants are to be issued under
Preferred Stock Warrant Agreements (each a "Preferred Stock Warrant
Agreement") to be entered into between the Company and a bank or trust
company, as Preferred Stock Warrant Agent (the "Preferred Stock Warrant
Agent"), all as to be set forth in the applicable Prospectus Supplement
relating to the Preferred Stock Warrants in respect of which this Prospectus
is being delivered. A copy of the form of Preferred Stock Warrant Agreement,
including the form of Warrant Certificates representing the Preferred Stock
Warrants (the "Preferred Stock Warrant Certificates") reflecting the
provisions to be included in the Preferred Stock Warrant Agreements that will
be entered into with respect to particular offerings of Preferred Stock
Warrants, is filed as an exhibit to the Registration Statement of which this
Prospectus forms part. The following summaries of certain provisions of the
Preferred Stock Warrant Agreement and the Preferred Stock Warrant Certificates
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Preferred Stock Warrant
Agreement and the Preferred Stock Warrant Certificates, respectively,
including the definitions therein of certain capitalized terms not defined
herein.
General. Reference is made to the applicable Prospectus Supplement for
the terms of Preferred Stock Warrants in respect of which this Prospectus is
being delivered, the Preferred Stock Warrant Agreement relating to such
Preferred Stock Warrants and the Preferred Stock Warrant Certificates
representing such Preferred Stock Warrants, including the following: (1) the
offering price of such Preferred Stock Warrants, if any; (2) the procedures
and conditions relating to the exercise of such Preferred Stock Warrants;
(3) the number of shares of Preferred Stock or Convertible Preferred Stock
purchasable upon exercise of such Preferred Stock Warrant and the initial
price at which such shares may be purchased upon exercise; (4) the date on
which the right to exercise such Preferred Stock Warrants shall commence and
the date on which such right shall expire; (5) a discussion of the U.S.
Federal income tax considerations applicable to the exercise of Preferred
Stock Warrants; (6) call provisions of such Preferred Stock Warrants, if any;
and (7) any other terms of the Preferred Stock Warrants.
Prior to the exercise of their Preferred Stock Warrants, holders of
Preferred Stock Warrants will not have any of the rights of holders of the
Preferred Stock or Convertible Preferred Stock purchasable upon such exercise,
and will not be entitled to any dividend payments on the Preferred Stock or
Convertible Preferred Stock purchasable upon such exercise.
Exercise of Stock Warrants. Each Preferred Stock Warrant will entitle the
holder to purchase for cash such number of shares of Preferred Stock or
Convertible Preferred Stock at such exercise price as shall in each case be
set forth in, or be determinable as set forth in, the applicable Prospectus
Supplement relating to the Preferred Stock Warrants offered thereby. Unless
otherwise specified in the applicable Prospectus Supplement, Preferred Stock
Warrants may be exercised at any time up to 5:00 p.m. New York City time on
the expiration date set forth in the applicable Prospectus Supplement. After
5:00 p.m. New York City time on the expiration date, unexercised Preferred
Stock Warrants will become void.
Preferred Stock Warrants may be exercised as to be set forth in the
applicable Prospectus Supplement relating to the Preferred Stock Warrants in
respect of which this Prospectus is being delivered. Upon receipt of payment
and the Preferred Stock Warrant Certificates properly completed and duly
executed at the corporate trust office of the Preferred Stock Warrant Agent or
any other office indicated in the applicable Prospectus Supplement, the
Company will, as soon as practicable, forward a certificate representing the
number of shares of Preferred Stock purchasable upon such exercise. If less
than all of the Preferred Stock Warrants represented by such Preferred Stock
<PAGE>
Warrant Certificate are exercised, a new Preferred Stock Warrant Certificate
will be issued for the remaining amount of Preferred Stock Warrants.
CURRENCY WARRANTS
The Company may issue, together with Debt Securities or Debt Warrants or
separately, Currency Warrants either in the form of Currency Put Warrants
entitling the holders thereof to receive from the Company the Cash Settlement
Value in U.S. dollars of the right to sell a specified amount of a specified
foreign currency or currency units for a specified amount of U.S. dollars, or
in the form of Currency Call Warrants entitling the holders thereof to receive
from the Company the Cash Settlement Value in U.S. dollars of the right to
purchase a specified amount of a specified foreign currency or currency units
for a specified amount of U.S. dollars. The spot exchange rate of the
applicable Base Currency, upon exercise, as compared to the U.S. dollar, will
determine whether the Currency Warrants have a Cash Settlement Value on any
given day prior to their expiration.
The Currency Warrants are to be issued under a Currency Warrant Agreement
to be entered into between the Company and a bank or trust company, as
Currency Warrant Agent (the "Currency Warrant Agent"), all as to be set forth
in the applicable Prospectus Supplement. A copy of the form of Currency
Warrant Agreement, including the forms of Global Warrant Certificates
representing the Currency Put Warrants and Currency Call Warrants (the
"Currency Warrant Certificates"), reflecting the provisions to be included in
the Currency Warrant Agreement that will be entered into with respect to
particular offerings of Currency Warrants, is filed as an exhibit to the
Registration Statement of which this Prospectus forms part. The description
of the Currency Warrants contained herein and the following summaries of
certain provisions of the Currency Warrant Agreement and the Currency Warrant
Certificates do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all the provisions of the
Currency Warrant Agreement and the Currency Warrant Certificates,
respectively, including the definitions therein of certain capitalized terms
not defined herein.
General. Reference is made to the applicable Prospectus Supplement for
the terms of Currency Warrants in respect of which this Prospectus is being
delivered, the Currency Warrant Agreement relating to such Currency Warrants
and the Currency Warrant Certificates representing such Currency Warrants,
including the following: (1) whether such Currency Warrants will be Currency
Put Warrants, Currency Call Warrants, or both; (2) the formula for determining
the Cash Settlement Value, if any, of each Currency Warrant; (3) the
procedures and conditions relating to the exercise of such Currency Warrants;
(4) the circumstances which will cause the Currency Warrants to be deemed to
be automatically exercised; (5) any minimum number of Currency Warrants which
must be exercised at any one time, other than upon automatic exercise; and
(6) the date on which the right to exercise such Currency Warrants will
commence and the date on which such right will expire.
Book-Entry Procedures and Settlement. Except as may otherwise be provided
in the applicable Prospectus Supplement, the Currency Warrants will be issued
in the form of Global Currency Warrant Certificates, registered in the name of
a depositary or its nominee. Holders will not be entitled to receive
definitive certificates representing Currency Warrants. A holder's ownership
of a Currency Warrant will be recorded on or through the records of the
brokerage firm or other entity that maintains such holder's account. In turn,
the total number of Currency Warrants held by an individual brokerage firm for
its clients will be maintained on the records of the depositary in the name of
such brokerage firm or its agent. Transfer of ownership of any Currency
Warrant will be effected only through the selling holder's brokerage firm.
Exercise of Currency Warrants. Each Currency Warrant will entitle the
holder to receive the Cash Settlement Value of such Currency Warrant on the
applicable Exercise Date, in each case as such terms will be defined in the
applicable Prospectus Supplement. If not exercised prior to 3:00 p.m., New
<PAGE>
York City time, on the fifth New York Business Day preceding the expiration
date, Currency Warrants will be deemed automatically exercised on the
expiration date.
CORPORATE PROVISIONS
CERTIFICATE OF INCORPORATION AND BY-LAWS
The Company's Restated Certificate of Incorporation (the "Certificate")
and By-laws ("By-laws") provide for the classification of the Company's Board
of Directors into three classes to be elected to staggered three-year terms;
limitations on the shareholders' ability to nominate individuals for election
as directors; and the inclusion of provisions which require that special
meetings of shareholders may only be called by the Chairman of the Board, the
President or the Board pursuant to a resolution approved by a majority of the
entire Board.
The Certificate also provides that the affirmative vote of the holders of
at least 80% of the outstanding shares of all classes of capital stock
entitled to vote, considered as one class, is required to authorize the
Company to enter into certain transactions with any individual, corporation or
other person that is the beneficial owner of more than 10% of the outstanding
shares of any class of capital stock of the Company. Beneficial ownership of
shares by a person includes shares which such person has the right to acquire
by agreement or by exercise of warrants, options or other rights, shares so
owned by others with which such person has an agreement with respect to the
acquisition, holding, voting or disposition of Asarco capital stock or assets,
or shares owned by "affiliates" or "associates" of such person (as such terms
are defined in the rules and regulations of the Commission). The transactions
with a 10% beneficial owner that are subject to such special shareholder
approval requirements include: (a) any merger or consolidation of the Company
or of any subsidiary of the Company with or into such beneficial owner,
(b) any sale, lease, exchange or other disposition of all or any material part
of the assets of the Company or of any subsidiary of the Company to or with
such beneficial owner, and (c) any issuance or transfer of securities of the
Company to such beneficial owner. The special shareholder approval described
in this paragraph does not apply to any agreement for the merger of any
subsidiary of the Company with the Company if the Company is the surviving
corporation. No amendment to the provisions of the Company's Certificate
outlined in this paragraph may be made without the affirmative vote of the
holders of at least 80% of the outstanding shares of all classes of voting
stock entitled to vote, considered as one class.
In addition to any vote required by law or by provisions outlined in the
preceding paragraph, the Certificate provides that a majority of the
Continuing Directors (as defined) of the Company must approve certain
transactions, including transactions between the Company and any person (or
any affiliate or associate of such person) who at the time of the transaction
or during the preceding two years was the beneficial owner of 10% or more of
the voting stock of the Company or who has announced the intention of becoming
the beneficial owner of such stock (such person is referred to herein as an
"interested shareholder"). A "Continuing Director" is defined to include the
current members of the Board of Directors and any future members who are not
affiliates or associates of an interested shareholder at the time of the
transaction and who either became a member of the Board before the interested
shareholder became or threatened to become a beneficial owner of 10% of the
voting stock or who was nominated or elected by a majority of the other
Continuing Directors. The transactions with an interested shareholder that
are subject to the approval of the Continuing Directors include: (a) the sale
or other disposal of assets or securities to an interested shareholder or any
other arrangement for the benefit of an interested shareholder where the
assets or securities sold or disposed of have a fair market value of more than
$10,000,000 or 1% of the book value of the Company's consolidated total
assets; (b) any arrangement pursuant to which the interested shareholder or
parties related to such interested shareholder would have any management
responsibility over the Company's affairs, other than as a director; (c) the
<PAGE>
adoption of any plan or proposal for the liquidation or dissolution of the
Company or any amendment to the Company's By-laws; and (d) any
reclassification of securities, recapitalization or other transaction which
has the effect, directly or indirectly, of increasing an interested
shareholder's proportionate share of the outstanding capital stock of the
Company or a subsidiary. No amendment to the provision of the Company's
Certificate outlined in this paragraph may be made without the affirmative
vote of the holders of at least 80% of the outstanding voting stock of the
Company and the holders of at least a majority of the voting stock who are not
affiliated or associated with the interested shareholder. By act of the
Continuing Directors, the Board is empowered to waive the requirement that
such 80% approval and majority approval be obtained.
The Company's Board of Directors believes that the provisions described
above will help assure that all of the Company's shareholders will be treated
similarly if certain kinds of business combinations are effected. However,
these provisions also may have the effect of deterring hostile takeovers or
delaying or preventing changes in control or management of the Company, and
may make it more difficult to accomplish certain transactions that are opposed
by the incumbent Board of Directors.
NEW JERSEY LAW AND OTHER LIMITATIONS UPON TRANSACTIONS WITH "INTERESTED
SHAREHOLDERS"
The New Jersey Business Corporation Act provides that in determining
whether a proposal or offer to acquire a corporation is in the best interest
of the corporation, the Board of Directors may, in addition to considering the
effects of any action on shareholders, consider any of the following: (a) the
effects of the proposed action on the corporation's employees, suppliers,
creditors and customers, (b) the effects on the community in which the
corporation operates and (c) the long-term as well as short-term interests of
the corporation and its shareholders, including the possibility that these
interests may best be served by the continued independence of the corporation.
The statute further provides that if, based on these factors, the Board of
Directors determines that any such offer is not in the best interest of the
corporation, it may reject the offer. These provisions may make it more
difficult for a shareholder to challenge the Board of Directors' rejection of,
and may facilitate the Board of Directors' rejection of, an offer to acquire
the Company.
The Company is also subject to the New Jersey Shareholders Protection Act
(the "Protection Act"), which prohibits certain New Jersey corporations from
engaging in business combinations (including mergers, consolidations,
significant asset dispositions and certain stock issuances) with any
Interested Shareholder (defined to include, among others, any person that
becomes a beneficial owner of 10% or more of the affected corporation's voting
power) for five years after such person becomes an Interested Shareholder,
unless the business combination is approved by the Board of Directors prior to
the date the shareholder became an Interested Shareholder. In addition, the
Protection Act prohibits any business combination at any time with an
Interested Shareholder other than a transaction that (i) is approved by the
Board of Directors prior to the date the Interested Shareholder became an
Interested Shareholder, or (ii) is approved by the affirmative vote of the
holders of two-thirds of the voting stock not beneficially owned by the
Interested Shareholder, or (iii) satisfies certain "fair price" and related
criteria.
LIMITATION OF LIABILITY AND INDEMNIFICATION MATTERS
The Company has a shareholder-approved By-law provision requiring it to
indemnify its directors and officers to the fullest extent permitted in
certain circumstances, to advance expenses, to maintain insurance and to
follow certain other procedures. Provisions of the Certificate eliminate the
personal monetary liability of directors and officers for breaches of duty,
except for (i) breaches of such person's duty of loyalty, (ii) those instances
where such person is found not to have acted in good faith or in knowing
<PAGE>
violation of law and (iii) those instances where such person received an
improper personal benefit as the result of such breach.
TRANSFER AGENT
The transfer agent for the Common Stock is The Bank of New York.
PLAN OF DISTRIBUTION
GENERAL
The Company may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities for whom they
may act as agents in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities
by them may be deemed to be underwriting discounts and commissions under the
Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company will be described, in the applicable
Prospectus Supplement.
The Preferred Stock, the Convertible Debt Securities, the Debt
Securities, the Depositary Shares and the Warrants will each be a new issue of
Securities ("New Issues") with no established trading market. Underwriters
and agents to whom New Issues are sold by the Company for public offering and
sale may make a market in such New Issues, but such underwriters and agents
will not be obligated to do so and may discontinue any market making at any
time without notice. No assurance can be given as to the liquidity of the
trading market for the New Issues.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Act, or to contribution with respect to
payments required to be made in respect thereof.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any
purchaser under any such contract will be subject to the condition that the
purchase of the Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other persons will not have any responsibility in
respect of the validity or performance of such contracts.
EXPERTS
The consolidated financial statements and financial statement schedules
of ASARCO Incorporated and Subsidiaries included in the latest Annual Report
of the Company on Form 10-K incorporated herein by reference, have been
<PAGE>
audited by Coopers & Lybrand L.L.P., independent accountants, as stated in
their report included in such Form 10-K, and have been incorporated by
reference herein in reliance upon such report given upon the authority of that
firm as experts in accounting and auditing.
With respect to unaudited interim financial information included in the
Company's Quarterly Reports on Form 10-Q that are incorporated herein by
reference, Coopers & Lybrand L.L.P. has applied limited procedures in
accordance with professional standards for reviews of such information. As
stated in any of their reports that are included in the Company's Quarterly
Reports on Form 10-Q that are incorporated herein by reference, Coopers &
Lybrand L.L.P. did not audit and did not express an opinion on such interim
financial information. Accordingly, the degree of reliance on any of their
reports on such information should be restricted in light of the limited
nature of the review procedures applied. Coopers & Lybrand L.L.P. are not
subject to the liability provisions of Section 11 of the Act for their reports
on such unaudited interim financial information because those reports are not
"reports" or "parts" of the Registration Statement prepared or certified by
them within the meaning of Sections 7 and 11 of the Act.
LEGAL MATTERS
The validity of the issuance of the Securities offered hereby will be
passed upon for the Company by White & Case, New York, New York, and certain
legal matters will be passed upon by Augustus B. Kinsolving, Esq., Vice
President and General Counsel of the Company.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Expenses in connection with the issuance of the securities being
registered hereby are estimated as follows:
<TABLE>
<S> <C>
Registration fee . . . . . . . . . . . . . . $51,724.14
Accounting fees and expenses . . . . . . . . ______.00*
Legal fees and expenses . . . . . . . . . . . ______.00*
Blue Sky and Legal Investment fees and expenses ______.00*
Transfer Agent's fees and expenses . . . . . ______.00*
Printing expenses . . . . . . . . . . . . . . ______.00*
Miscellaneous . . . . . . . . . . . . . . . . ______.00*
Total . . . . . . . . . . . . . . . . . . . $______.00*
</TABLE>
_______________
* Subject to future contingencies.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 9 of the Certificate of Incorporation of the Company provides as
follows:
"9. This corporation shall indemnify to the full extent permitted by
law any person made, or threatened to be made, a party to any pending,
threatened or completed civil, criminal, administrative or arbitrative action,
suit or proceeding and any appeal therein (and any inquiry or investigation
which could lead to such action, suit or proceeding) by reason of the fact
that he is or was a director, officer or employee of this corporation or
serves or served any other enterprise as a director, officer or employee at
<PAGE>
the request of this corporation. Such right of indemnification shall inure to
the benefit of the legal representative of any such person."
In April 1987, the Company adopted and its shareholders approved a By-law
amendment which requires it to indemnify directors and officers in certain
circumstances, to advance certain expenses, to obtain indemnification
insurance and to follow specific procedures for determining whether a director
or officer has met applicable standards of conduct. The By-law amendment also
establishes a statute of limitations for certain actions against directors and
officers. These provisions in the Certificate of Incorporation and By-laws
are permitted under Section 14A:3-5 of the New Jersey Business Corporation
Act, set forth below.
Section 14A:3-5 of the New Jersey Business Corporation Act governs the
indemnification of directors, officers and employees of the Company. The
following is the text of the Section which became effective February 4, 1989:
"(1) As used in this section,
(a) "Corporate agent" means any person who is or was a director,
officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in
a consolidation or merger and any person who is or was a director,
officer, trustee, employee or agent of any other enterprise, serving
as such at the request of the indemnifying corporation, or of any
such constituent corporation, or the legal representative of any
such director, officer, trustee, employee or agent;
(b) "Other enterprise" means any domestic or foreign corporation, other
than the indemnifying corporation, and any partnership, joint
venture, sole proprietorship, trust or other enterprise, whether or
not for profit, served by a corporate agent;
(c) "Expenses" means reasonable costs, disbursements and counsel fees;
(d) "Liabilities" means amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties;
(e) "Proceeding" means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding,
and any appeal therein and any inquiry or investigation which could
lead to such action, suit or proceeding; and
(f) References to "other enterprises" include employee benefit plans;
references to "fines" include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to "serving
at the request of the indemnifying corporation" include any service
as a corporate agent which imposes duties on, or involves services
by, the corporate agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good
faith and in a manner the person reasonably believed to be in the
interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed
to the best interests of the corporation" as referred to in this
section.
"(2) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate agent
against his expenses and liabilities in connection with any proceeding
involving the corporate agent by reason of his being or having been such a
corporate agent, other than a proceeding by or in the right of the
corporation, if
(a) such corporate agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the corporation; and
<PAGE>
(b) with respect to any criminal proceeding, such corporate agent had no
reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent shall
not of itself create a presumption that such corporate agent did not
meet the applicable standards of conduct set forth in paragraphs
14A:3-5(2)(a) and 14A:3-5(2)(b).
"(3) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate agent
against his expenses in connection with any proceeding by or in the right of
the corporation to procure a judgment in its favor which involves the
corporate agent by reason of his being or having been such corporate agent, if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation. However, in such proceeding
no indemnification shall be provided in respect of any claim, issue or matter
as to which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Superior Court or the
court in which such proceeding was brought shall determine upon application
that despite the adjudication of liability, but in view of all circumstances
of the case, such corporate agent is fairly and reasonably entitled to
indemnity for such expenses as the Superior Court or such other court shall
deem proper.
"(4) Any corporation organized for any purpose under any general or
special law of this State shall indemnify a corporate agent against expenses
to the extent that such corporate agent has been successful on the merits or
otherwise in any proceeding referred to in subsections 14A:3-5(2) and
14A:3-5(3) or in defense of any claim, issue or matter therein.
"(5) Any indemnification under subsection 14A:3-5(2) and, unless ordered
by a court, under subsection 14A:3-5(3) may be made by the corporation only as
authorized in a specific case upon a determination that indemnification is
proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or
subsection 14A:3-5(3). Unless otherwise provided in the certificate of
incorporation or bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors who were not
parties to or otherwise involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable and such
quorum of the board of directors or committee by a majority vote of
the disinterested directors so directs, by independent legal
counsel, in a written opinion, such counsel to be designated by the
board of directors; or
(c) by the shareholders if the certificate of incorporation or bylaws or
a resolution of the board of directors or of the shareholders so
directs.
"(6) Expenses incurred by a corporate agent in connection with a
proceeding may be paid by the corporation in advance of the final disposition
of the proceeding as authorized by the board of directors upon receipt of an
undertaking by or on behalf of the corporate agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified as
provided in this section.
"(7) (a) If a corporation upon application of a corporate agent has
failed or refused to provide indemnification as required under
subsection 14A:3-5(4) or permitted under subsections 14A:3-5(2), 14A:3-5(3)
and 14A:3-5(6), a corporate agent may apply to a court for an award of
indemnification by the corporation, and such court
(i) may award indemnification to the extent authorized under
<PAGE>
subsections 14A:3-5(2) and 14A:3-5(3) and shall award
indemnification to the extent required under subsection 14A:3-5(4),
notwithstanding any contrary determination which may have been made
under subsection 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by, and
subject to the provisions of, subsection 14A:3-5(6), if the court
shall find that the corporate agent has by his pleadings or during
the course of the proceeding raised genuine issues of fact or law.
(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or are to be
incurred or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the
application is for indemnification arising out of a civil action, it
shall set forth reasonable cause for the failure to make application
for such relief in the action or proceeding in which the expenses
were or are to be incurred or other amounts were or are to be paid.
The application shall set forth the disposition of any previous
application for indemnification and shall be made in such manner and form as
may be required by the applicable rules of court or, in the absence thereof,
by direction of the court to which it is made. Such application shall be upon
notice to the corporation. The court may also direct that notice shall be
given at the expense of the corporation to the shareholders and such other
person as it may designate in such manner as it may require.
"(8) The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of this section shall not exclude
any other rights, including the right to be indemnified against liabilities
and expenses incurred in proceedings by or in the right of the corporation, to
which a corporate agent may be entitled under a certificate of incorporation,
bylaw, agreement, vote of shareholders, or otherwise; provided that no
indemnification shall be made to or on behalf of a corporate agent if a
judgment or other final adjudication adverse to the corporate agent
establishes that his acts or omissions
(a) were in breach of his duty of loyalty to the corporation or its
shareholders, as defined in subsection (3) of N.J.S. 14A:2-7;
(b) were not in good faith or involved a knowing violation of law; or
(c) resulted in receipt by the corporate agent of an improper personal
benefit.
"(9) Any corporation organized for any purpose under any general or
special law of this State shall have the power to purchase and maintain
insurance on behalf of any corporate agent against any expenses incurred in
any proceeding and any liabilities asserted against him by reason of his being
or having been a corporate agent, whether or not the corporation would have
the power to indemnify him against such expenses and liabilities under the
provisions of this section. The corporation may purchase such insurance from,
or such insurance may be reinsured in whole or in part by, an insurer owned by
or otherwise affiliated with the corporation, whether or not such insurer does
business with other insureds.
"(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its certificate
of incorporation or bylaws authorizing the exercise of such powers.
"(11) Except as required by subsection 14A:3-5(4), no indemnification
shall be made or expenses advanced by a corporation under this section, and
none shall be ordered by a court, if such action would be inconsistent with a
provision of the certificate of incorporation, a bylaw, a resolution of the
<PAGE>
board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause of
action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled.
"(12) This section does not limit a corporation's power to pay or
reimburse expenses incurred by a corporate agent in connection with the
corporate agent's appearance as a witness in a proceeding at a time when the
corporate agent has not been made a party to the proceeding."
The Company has various insurance policies, which became effective
April 15, 1994, insuring directors and officers against certain liabilities
they may incur, including liabilities under the Securities Act of 1933, as
amended. The policies provide coverage for claims not reimbursed by the
Company up to an aggregate limit of $75 million without deductible. For
claims which are reimbursed by the Company, the policies provide coverage up
to $75 million with a deductible of $1 million. These policies remain in
effect.
ITEM 16. EXHIBITS.
Exhibit
Number Description of Documents
1 Form of Underwriting Agreement relating to the Securities*
3.1 Certificate of Incorporation
(a) Certificate of Incorporation - restated, filed May 4, 1970 (Filed
as an Exhibit to the Company's 1980 Annual Report on Form 10-K and
incorporated herein by reference)
(b) Certificate of Amendment to the Certificate of Incorporation
effective April 23, 1975 (Filed as an Exhibit to the Company's 1980
Annual Report on Form 10-K and incorporated herein by reference)
(c) Certificate of Amendment of Certificate of Incorporation executed
April 14, 1981 (Filed as an Exhibit to the Post-Effective Amendment
No. 8 to Registration Statement No. 2-47616, filed April 30, 1981
and incorporated herein by reference)
(d) Certificate of Amendment of Restated Certificate of Incorporation
filed on May 6, 1985 (Filed as an Exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 1985
and incorporated herein by reference)
(e) Certificate of Amendment of Certificate of Incorporation filed
July 21, 1986 (Filed as an Exhibit to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1986 and incorporated
herein by reference)
(f) Certificate of Amendment of Restated Certificate of Incorporation,
as amended, filed April 22, 1987 (Filed as an Exhibit to the
Company's 1987 Annual Report on Form 10-K and incorporated herein by
reference)
(g) Statement of Cancellation filed July 31, 1987 whereby 155,000 shares
of Series A Cumulative Preferred Stock and 862,500 shares of $9.00
Convertible Exchangeable Preferred Stock were cancelled (Filed as an
Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(h) Statement of Cancellation filed November 20, 1987 whereby 1,026,900
shares of Series A Cumulative Preferred Stock were cancelled (Filed
<PAGE>
as an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(i) Statement of Cancellation filed December 18, 1987 whereby 1,250,000
shares of Series B Cumulative Convertible Preferred Stock were
cancelled (Filed as an Exhibit to the Company's 1987 Annual Report
on Form 10-K and incorporated herein by reference)
(j) Statement of Cancellation filed March 3, 1988 whereby 27,000 shares
of Series A Cumulative Preferred Stock were cancelled (Filed as an
Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(k) Certificate of Amendment of Restated Certificate of Incorporation,
as amended, filed August 7, 1989 (Filed as an Exhibit to the
Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1989 and incorporated herein by reference)
3.2 By-Laws as last amended on June 26, 1991 (Filed as an Exhibit to the
Company's 1991 Annual Report on Form 10-K and incorporated herein by
reference)
4.1 Form of Indenture between the Company and Chemical Bank, as Trustee, for
Debt Securities and Convertible Debt Securities*
4.2 Form of Deposit Agreement between the Company and the Depositary, for
Depositary Shares and Depositary Receipts*
4.3 Form of Common Stock Warrant Agreement*
4.4 Form of Preferred Stock Warrant Agreement*
4.5 Form of Debt Warrant Agreement*
4.6 Form of Currency Warrant Agreement*
5.1 Opinion of White & Case
12.1 Statement re Computation of Consolidated Ratio of Earnings to Fixed
Charges and Combined Fixed Charges and Preferred Share Dividend
Requirements
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of White & Case (contained in its opinion filed as
Exhibit 5.1)
24 Power of attorney (included on pages II-11 and II-12)
25.1 Statement of Eligibility of Trustee*
_______________
* Previously filed as an Exhibit to the Company's Registration Statement on
Form S-3 (No. 33-55993).
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
<PAGE>
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in this Registration Statement shall be deemed
to be a new Registration Statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this Registration Statement as of the time it was declared
effective.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Company will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue. SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York, State of New York, on the
<PAGE>
9th day of April, 1996.
ASARCO Incorporated
By: /s/ Richard de J. Osborne
Name: Richard de J. Osborne
Title: Chairman of the Board,
Chief Executive Officer and President
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes Kevin R. Morano and Augustus B. Kinsolving, and each of
them, as attorney-in-fact, to sign in such person's behalf, individually and
in each capacity stated below, and to file any amendments, including post-
effective amendments to this Registration Statement.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES STATED BELOW ON THE 9TH DAY OF APRIL, 1996.
<TABLE>
<S> <C>
Signature Title
/s/ Richard de J. Osborne Chairman of the Board, Chief Executive
_______________________________ Officer, President and Director
(Richard de J. Osborne)
/s/ Kevin R. Morano Vice President and Chief Financial
_______________________________ Officer (Principal Financial Officer)
(Kevin R. Morano)
/s/ William Dowd Controller (Principal Accounting Officer)
_______________________________
(William Dowd)
/s/ Willard C. Butcher Director
_______________________________
(Willard C. Butcher)
/s/ James C. Cotting Director
_______________________________
(James C. Cotting)
/s/ David C. Garfield Director
_______________________________
(David C. Garfield)
/s/ E. Gordon Gee Director
_______________________________
(E. Gordon Gee)
/s/ Harry Holiday, Jr. Director
_______________________________
(Harry Holiday, Jr.)
/s/ James W. Kinnear, III Director
_______________________________
(James W. Kinnear, III)
/s/ Francis R. McAllister Director
_______________________________
(Francis R. McAllister)
/s/ Martha T. Muse Director
<PAGE>
_______________________________
(Martha T. Muse)
/s/ Michael T. Nelligan Director
_______________________________
(Michael T. Nelligan)
/s/ John D. Ong Director
______________________________
(John D. Ong)
/s/ James Wood Director
______________________________
(James Wood)
</TABLE>
EXHIBIT INDEX
Exhibit
Number Description of Documents Page
1 Form of Underwriting Agreement relating to the Securities*
3.1 Certificate of Incorporation
(a) Certificate of Incorporation -- restated, filed May 4, 1970 (Filed as
an Exhibit to the Company's 1980 Annual Report on Form 10-K and
incorporated herein by reference)
(b) Certificate of Amendment to the Certificate of Incorporation effective
April 23, 1975 (Filed as an Exhibit to the Company's 1980 Annual
Report on Form 10-K and incorporated herein by reference)
(c) Certificate of Amendment of Certificate of Incorporation executed
April 14, 1981 (Filed as an Exhibit to the Post-Effective Amendment
No. 8 to Registration Statement No. 2-47616, filed April 30, 1981 and
incorporated herein by reference)
(d) Certificate of Amendment of Restated Certificate of Incorporation
filed on May 6, 1985 (Filed as an Exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1985 and
incorporated herein by reference)
(e) Certificate of Amendment of Certificate of Incorporation filed
July 21, 1986 (Filed as an Exhibit to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1986 and incorporated
herein by reference)
(f) Certificate of Amendment of Restated Certificate of Incorporation, as
amended, filed April 22, 1987 (Filed as an Exhibit to the Company's
1987 Annual Report on Form 10-K and incorporated herein by reference)
(g) Statement of Cancellation filed July 31, 1987 whereby 155,000 shares
of Series A Cumulative Preferred Stock and 862,500 shares of $9.00
Convertible Exchangeable Preferred Stock were cancelled (Filed as an
Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(h) Statement of Cancellation filed November 20, 1987 whereby 1,026,900
shares of Series A Cumulative Preferred Stock were cancelled (Filed as
an Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(i) Statement of Cancellation filed December 18, 1987 whereby 1,250,000
shares of Series B Cumulative Convertible Preferred Stock were
<PAGE>
cancelled (Filed as an Exhibit to the Company's 1987 Annual Report on
Form 10-K and incorporated herein by reference)
(j) Statement of Cancellation filed March 3, 1988 whereby 27,000 shares of
Series A Cumulative Preferred Stock were cancelled (Filed as an
Exhibit to the Company's 1987 Annual Report on Form 10-K and
incorporated herein by reference)
(k) Certificate of Amendment of Restated Certificate of Incorporation, as
amended, filed August 7, 1989 (Filed as an Exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1989 and
incorporated herein by reference)
3.2 By-Laws as last amended on June 26, 1991 (Filed as an Exhibit to the
Company's 1991 Annual Report on Form 10-K and incorporated herein by
reference)
4.1 Form of Indenture between the Company and Chemical Bank, as Trustee,
for Debt Securities and Convertible Debt Securities*
4.2 Form of Deposit Agreement between the Company and the Depositary, for
Depositary Shares and Depositary Receipts*
4.3 Form of Common Stock Warrant Agreement*
4.4 Form of Preferred Stock Warrant Agreement*
4.5 Form of Debt Warrant Agreement*
4.6 Form of Currency Warrant Agreement*
5.1 Opinion of White & Case
12.1 Statement re Computation of Consolidated Ratio of Earnings to Fixed
Charges and Combined Fixed Charges and Preferred Share Dividend
Requirements
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of White & Case (contained in its opinion filed as
Exhibit 5.1)
24 Power of Attorney (included on pages II-11 and II-12)
25.1 Statement of Eligibility of Trustee*
_______________
* Previously filed as an Exhibit to the Company's Registration Statement on
Form S-3 (No. 33-55993).
EXHIBIT 5.1
White & Case
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
April 9, 1996
ASARCO Incorporated
<PAGE>
180 Maiden Lane
New York, New York 10038
Dear Sirs:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"), in the form in which it is to be filed today by ASARCO Incorporated, a
New Jersey corporation ("Asarco"), with the Securities and Exchange Commission
(the "Commission"), relating to up to $150,000,000 aggregate principal amount
or initial offering price of Asarco's (i) debt securities or convertible debt
securities consisting of debentures, notes or other unsecured evidences of
indebtedness to be issued from time to time pursuant to the terms of an
Indenture, dated as of October 1, 1994, between Asarco and Chemical Bank, as
Trustee, (the "Indenture"); (ii) shares of its preferred stock or convertible
preferred stock, the specific titles, rights and terms of which will be set
forth in a Certificate of Designation which will be filed (or incorporated by
reference) as an exhibit to the Registration Statement ("Certificate of
Designation"), fractional shares of which preferred stock may be represented
by depositary receipts for depositary shares issued under a Deposit Agreement,
a form of which is being filed as an exhibit to the Registration Statement
("Deposit Agreement"); (iii) shares of its common stock, and (iv) warrants to
purchase such securities of Asarco or to receive such cash payments as shall
be designated by Asarco pursuant to the terms of Warrant Agreements, forms of
which are being filed as exhibits to the Registration Statement ("Warrant
Agreements"). The debt securities, convertible debt securities, preferred
stock, convertible preferred stock, depositary shares, common stock and
warrants referred to in the preceding sentence are herein collectively
referred to as the "Securities." The Securities are to be sold to or through
underwriters, to other purchasers or through agents. The issuance and terms
of the Securities to be offered and sold by Asarco are to be authorized and
approved and the manner of sale is to be determined in additional proceedings
proposed to be taken by Asarco's Board of Directors or a committee thereof.
We have examined the originals, or photostatic or certified copies, of
such records of Asarco, certificates of officers of Asarco and of public
officials and such other documents as we have deemed relevant and necessary as
the basis for the opinion set forth below. We have relied upon such
certificates of officers of Asarco and statements and information furnished by
officers of Asarco with respect to the accuracy of material factual matters
contained therein which were not independently established. In such
examination we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as photostatic or
certified copies, and the authenticity of the originals of such copies.
Based upon our examination mentioned above, subject to the assumptions
stated, and subject to such proposed additional proceedings being taken prior
to the issuance of the Securities, to the terms of the Securities being
otherwise in compliance with then applicable law, and, to the extent
applicable to the Securities to be issued, to the execution and delivery of
the Deposit Agreement and the Warrant Agreements, and the authorization,
execution, filing and recording of one or more Certificates of Designation, it
is our opinion that the Securities, upon issuance and sale by Asarco as
contemplated in the Registration Statement and any amendments and Prospectus
Supplements thereto, will have been duly authorized by Asarco and validly
issued, fully paid and non-assessable, and that the Securities, when duly
executed, authenticated, issued and delivered against payment therefor in
accordance with the Indenture or the Warrant Agreements, will constitute
legally binding obligations of Asarco.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm appearing under the
caption "Legal Matters" in the Prospectus forming part of the Registration
Statement. In giving this consent, we do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the
<PAGE>
Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
WHITE & CASE
EXHIBIT 12.1
<TABLE>
ASARCO Incorporated
STATEMENT re COMPUTATION OF CONSOLIDATED RATIO OF EARNINGS
TO FIXED CHARGES AND COMBINED FIXED CHARGES AND PREFERRED
SHARE DIVIDEND REQUIREMENTS
<CAPTION>
1995 1994 1993 1992 1991
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
NET EARNINGS (LOSS) . . . . . . . . . . . . . . $169,153 $64,034 $15,619 $(83,091) $45,957
ADJUSTMENTS
Taxes on Income . . . . . . . . . . . . . . 122,465 9,375 (36,503) (37,371) 2,199
Equity Earnings, Net of Taxes . . . . . . . (1,837) (47,653) (27,384) (2,575) (10,393)
Cumulative Effect of Change in Accounting
Principle . . . . . . . . . . . . . . . . - - (86,295) 53,964 -
Dividends received from non-consolidated
associated companies. . . . . . . . . . . 1,828 14,301 1,676 803 2,078
Total Fixed Charges . . . . . . . . . . . . 99,516 66,377 64,359 62,200 62,653
Interest Capitalized . . . . . . . . . . . (3,256) (869) (4,010) (7,433) (12,347)
Capitalized Interest Amortized . . . . . . 2,949 1,727 1,629 1,825 1,840
Minority Interest . . . . . . . . . . . . . 129,543 809 693 615 720
EARNINGS (LOSS) . . . . . . . . . . . . . . . . $520,361 $108,101 $(70,216) $(11,063) $92,707
FIXED CHARGES
Interest Expense . . . . . . . . . . . . . $91,954 $62,529 $57,321 $51,230 $46,227
Interest Capitalized . . . . . . . . . . . 3,256 869 4,010 7,433 12,347
Imputed Interest Expense . . . . . . . . . 4,306 2,979 3,028 3,537 4,079
TOTAL FIXED CHARGES . . . . . . . . . . . . . . $99,516 $66,377 $64,359 $62,200 $62,653
RATIO OF EARNINGS TO FIXED CHARGES . . . . . . 5.2 1.6 (1.1) (0.2) 1.5
</TABLE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of ASARCO Incorporated on Form S-3 of our reports dated January 30,
1996 on our audits of the consolidated financial statements and financial
statement schedules of ASARCO Incorporated and Subsidiaries as of December 31,
1995 and 1994 and for the years ended December 31, 1995, 1994, and 1993. Our
report on the consolidated financial statements includes an explanatory
paragraph that describes Southern Peru Copper Corporation's change in method
<PAGE>
of accounting for income taxes.
We also consent to the reference to our Firm under the caption "Experts"
only insofar as such reference relates to our reports on our aduits of the
consolidated financial statements and financial statement schedules referred
to above.
Coopers & Lybrand L.L.P.
New York, New York
April 4, 1996
